Coronavirus Sars-CoV-2/Covid-19 Megathread

[Maladict]

EU have published the AZ contract. I'm not a Belgian lawyer so it might be different, but having quickly read it I think that AZ are more correct than the briefings from the Commission. There's one point (which is actually kind of crucial) that is arguably a little bit ambiguous. There may be different facts around when AZ knew what and what AZ were telling the EC around this contract, but just based on the terms it doesn't seem like they're in breach.

What I'm reading is AZ was bound to do their reasonable best to deliver the vacines needed, or some such vague term. With the UK getting enough supplies but not the EU, one can argue they could do better.

[Sheilbh]

What I'm reading is AZ was bound to do their reasonable best to deliver the vacines needed, or some such vague term. With the UK getting enough supplies but not the EU, one can argue they could do better.

Yes - a lot of this is stolen from a UK contract lawyer online and it may be different in Belgium. And a key point isn't whether they need to do better in general but do they need to do better under their agreement with the EU.

Basically the agreement says AZ will use commercially reasonable efforts for a company like AZ to develop and manufacture the vaccine in certain sites in the EU (including, under this agreement two sites in the UK). There's a little bit of ambiguity in that clause around whether the UK sites should be used for the initial deliveries or not. So the question is does AZ - which has developed and brought a vaccine to market in record time and is producing millions of doses - need to do better to meet the requirement of commercially reasonable efforts. I think it's really tough to argue.

The Commission are apparently pointing to a warranty that no other contracts will impede AZ's obligations under this one. But I don't think they do. AZ have a contract to supply the UK from 2 factories (including a minimum delivery requirement) and a contract to supply the EU from 4 factories (which includes those 2 also supplying the UK). There's nothing - from what we've seen in the contract or the Soriot interview - to suggest that these contracts are inconsistent with each other (not least because reasonable efforts for a company like AZ would include supplying multiple clients) or that you'd need to breach one contract to fulfill the other.

In other news - thrilled to see the French President baselessly casting doubt on one the AZ vaccine: "today everything suggests that it is almost ineffective for those over 65, and some say over 60." That's not true and again is just going to harm vaccine efforts around the world. It also feels like a dangerous thing for the President of a very vaccine-sceptic country to be saying on the day that vaccines been approved for use in the over-65s (And the "some say over 60" is just Trump )

[Duque de Bragança]

In other news - thrilled to see the French President baselessly casting doubt on one the AZ vaccine: "today everything suggests that it is almost ineffective for those over 65, and some say over 60." That's not true and again is just going to harm vaccine efforts around the world. It also feels like a dangerous thing for the President of a very vaccine-sceptic country to be saying on the day that vaccines been approved for use in the over-65s (And the "some say over 60" is just Trump )

Chillax, Macron, as the well-known demagogue he is, can say anything and then the opposite if need be.
It's not like he did not visit an AZ plant in Dunkerque 9 days ago. 

[Sheilbh]

But people can hear him outside of France too and I think he's taken seriously (the tribune of the Centrist Dads). Today he said this which is, as I say, Trumpian level wrong when you compare what he said with what the EMA actually stated later that day:

PARIS — French President Emmanual Macron said Friday the AstraZeneca coronavirus vaccine appeared to be "quasi-ineffective" on people older than 65 — just hours before the EU's drugs regulator approved it for use on all adults.

"The real problem on AstraZeneca is that it doesn't work the way we were expecting it to," Macron told a group of reporters, including POLITICO, in Paris. "We're waiting for the EMA [European Medicines Agency] results, but today everything points to thinking it is quasi-ineffective on people older than 65, some say those 60 years or older."

Later in the day, the EMA gave the vaccine the green light. It said: "There are not yet enough results in older participants (over 55 years old) to provide a figure for how well the vaccine will work in this group. However, protection is expected, given that an immune response is seen in this age group and based on experience with other vaccines; as there is reliable information on safety in this population, EMA's scientific experts considered that the vaccine can be used in older adults."

He also made some comments on the UK's strategy ("I don't want to comment on other country's strategies [...] but it is not serious") which included just inaccurate information about vaccines. Many people will just see the French President - who isn't perceived in the same way as Trump - making these sort of remarks and think there's something to them. Again we can here him here too even if that line is just for domestic consumption. It's irresponsible in the middle of a pandemic

[Duque de Bragança]

  at people just discovering and/or taking seriously Macron. (Tribune of Centrist Dads?  )

[The Brain]

I've never paid much attention to Macron. Exactly how bad is he?

[Maladict]

What I'm reading is AZ was bound to do their reasonable best to deliver the vacines needed, or some such vague term. With the UK getting enough supplies but not the EU, one can argue they could do better.

Yes - a lot of this is stolen from a UK contract lawyer online and it may be different in Belgium. And a key point isn't whether they need to do better in general but do they need to do better under their agreement with the EU.

Basically the agreement says AZ will use commercially reasonable efforts for a company like AZ to develop and manufacture the vaccine in certain sites in the EU (including, under this agreement two sites in the UK). There's a little bit of ambiguity in that clause around whether the UK sites should be used for the initial deliveries or not. So the question is does AZ - which has developed and brought a vaccine to market in record time and is producing millions of doses - need to do better to meet the requirement of commercially reasonable efforts. I think it's really tough to argue.

The Commission are apparently pointing to a warranty that no other contracts will impede AZ's obligations under this one. But I don't think they do. AZ have a contract to supply the UK from 2 factories (including a minimum delivery requirement) and a contract to supply the EU from 4 factories (which includes those 2 also supplying the UK). There's nothing - from what we've seen in the contract or the Soriot interview - to suggest that these contracts are inconsistent with each other (not least because reasonable efforts for a company like AZ would include supplying multiple clients) or that you'd need to breach one contract to fulfill the other.

In other news - thrilled to see the French President baselessly casting doubt on one the AZ vaccine: "today everything suggests that it is almost ineffective for those over 65, and some say over 60." That's not true and again is just going to harm vaccine efforts around the world. It also feels like a dangerous thing for the President of a very vaccine-sceptic country to be saying on the day that vaccines been approved for use in the over-65s (And the "some say over 60" is just Trump )

edit: misread it again, must be Friday.

Still, say AZ can only provide 50% of demand, logically they would provide 50% of UK demand and 50% of EU demand, no?
That seems to be the issue, the UK getting relatively more than their share.

[Duque de Bragança]

I've never paid much attention to Macron.

Smart move.

Exactly how bad is he?

Ivory Tower, elitist, opportunistic sociopath type, from the PS (classic/big business) liberal wing.
He looks better than François Hollande though, which is enough for part of the electorate.

PS: when granny is around, he does not misbehave as much, truth be said.

[Sheilbh]

edit: misread it again, must be Friday.

Still, say AZ can only provide 50% of demand, logically they would provide 50% of UK demand and 50% of EU demand, no?
That seems to be the issue, the UK getting relatively more than their share.

It depends - we haven't seen the UK contract (and I'm not a Belgian lawyer on the EU one). But the UK one apparently says use the factories in the UK first for our orders and once we've had x minimum amount you can do what you want with the excess (including for fulfilling other contracts). So it wouldn't necessarily be a 50/50 split if, say, the UK factories are operating at 80% capacity (because they started earlier) and the Belgian factories are operating at 20% capacity because the UK might get 70% to fulfill its contract and the EU 30%. And AZ would say (I think they'd probably be okay under English law) that's best reasonable efforts.

And the UK and the EU didn't contract together so there's no mechanism for those contracts to be set off against each other and it's really an issue for AZ to make "best reasonable efforts" to fulfill each contract. So the UK getting relatively more doesn't necessarily matter because the UK's got a contract and AZ are fulfilling it (obviously it matters politically). I don't think it works that because the product you have bought exists in one of the factories you have approved, that you have a right to it even if it's been produced under a different contract.

Also - as I say I don't know Belgian law - but from an English perspective it would be very odd to say that it was a "reasonable" effort or "commercially reasonable" if a company had to breach one contract to fulfill another. I don't think that would fly in an English court at all (even if AZ was in breach of its obligations, it wouldn't be in breach because it didn't breach the UK contract ) but it could be different in Belgium. I don't know.

I think this is why it falls onto the warranty of whether the UK contract impedes fulfillment of the EU one (so AZ have breached the warranty) and I don't think it necessarily does. Not least because factually speaking those doses in a UK factory only exist because of the UK contract - without the UK contract, which was signed earlier and where the vaccine was approved earlier, you wouldn't have had the ramp up of production for there to be any doses at all. It seems tough to say this contract impedes you from fulfilling the EU one, when in a way you are piggy-backing on that contract's production capacity.

Having said all of that - that's just based on what we've seen and what's been in the public domain. It may be that AZ were saying very different things to the EU. And ultimately even if AZ are in breach - that doesn't get you any vaccines so it feels to me like a relatively standard procurement issue that just needs to be solved commercially by working together.

Ironically one of the reasons the UK has spent a lot of money making sure companies (not just AZ, also Valneva and Novavax) produce vaccines in the UK and supply the UK first was because of a fear of vaccine nationalism from Trump if he won re-election, I don't think they saw much of a risk of it from the EU.

[Maladict]

Yeah, we'll have to wait for more information. The wording in the EU contract suggests it was signed first and states AZ didn't have any other contractual obligations that would impede the complete fulfillment of its obligations, while the UK insists their contract was finalized first.

I guess the UK could always fall back on nationalising AZ 

[Sheilbh]

We know the dates-ish - the EU contract was signed on 27 August, the UK one was signed in May/June (and the UK government was involved in the AZ-Oxford deal from February). And what's key is that the obligation is best reasonable efforts - so the question is does the pre-existing UK contract get in the way of that obligation. Obviously we don't know Belgian law but the UK lawyers on Twitter take (which is overwhelmingly anti-Brexit and, I assume not instructed by AZ) is that the Commission are probably feeling the heat from member states and looking for someone to blame

The UK and EU have taken very different strategies with vaccines. The EU is negotiating hard and getting a far better deal on price (not relevant for AZ which is being sold at cost) and liability; the UK is not really negotiating hard on those things and prioritising speed and volume. I think the UK approach is right in the context of a pandemic (not least because the cost of lockdowns way outweigh the cost of overpaying for doses), but if there's anything wrong with any of the vaccines the EU approach may have been the right one. I think there's probably always a trade-off between speed and risk - the UK emphasised speed and the EU emphasised risk.

Honestly I feel like the EU was between a rock and a hard place - I think it was right to do it at a European level to avoid vaccine nationalism within Europe (as we saw over PPE). But it's never done something like this before and different member states are going to have different priorities. For example - if you're Greece and you did very well to squash the first wave you're not going to be happy negotiating for a high-cost vaccine in summer 2020, similarly I read that some CEE countries were very reluctant to order the mRNA vaccines because they were the riskiest and some felt that they were being pushed by countries (like Germany) with big pharma industries. And I think in the middle of all that is the Commission trying to negotiate these deals and getting the blame even when the issue is with member states' distribution.

But the alternative is you have France impounding the Czech vaccine supply (just like they did with several countries' - including the UK - PPE ).

[The Larch]

Yeah, we'll have to wait for more information. The wording in the EU contract suggests it was signed first and states AZ didn't have any other contractual obligations that would impede the complete fulfillment of its obligations, while the UK insists their contract was finalized first.

I guess the UK could always fall back on nationalising AZ 

Nope, AZ signed with the UK a few months in advance of signing with the EU, AFAIK.

[The Larch]

Edit: Incidentally - Serbia is doing really well on rolling out vaccines I don't know which ones they're using but this is great because of the "virus anywhere is virus everywhere" point which seems particularly a risk within Europe in the Western Balkans:
https://ourworldindata.org/grapher/daily-covid-vaccination-doses-per-capita?tab=chart&stackMode=absolute&time=earliest..latest&region=World

Serbia is using mainly the Chinese one, mixed with much smaller amounts of the Pfizer one. Apparently you can choose which one you can get, but if you choose the Pfizer one then you have to wait much longer because there are so few of them.

[Zanza]

The recent actions by the EU regarding vaccine export are not helpful. Their actions in the last days look panicky. That said, more transparency on production and where the vaccines are going is needed, just to understand the issue. But the way they present this in public is disastrous.

If the EU stops exporting vaccines, there is no argument to ask the US to reconsider their export ban either. That would mean the two largest producers of vaccines stop exporting in a global pandemic. Hardly helpful to solve a global problem. A lot of countries in the world don't have any own production capability.

However, if there is an indication that Europeans don't get their fair share of EU produced vaccines, public pressure will almost inevitably force further export restrictions. So they need to get clarity on the numbers fast.

[Sheilbh]

Agreed. It feels a lot like someone senior in the Commission is panicking about this and stuff isn't going through the normal procedures. This may just be because I follow several Irish journalists but the export control mechanism activated the Irish border under Article 16 of the protocol (which is about emergency measures to avoid social unrest). But no-one notified the UK government (which is required under the protocol), the Irish government or, reportedly, the Commissioner in charge of managing the protocol. It just feels like in a normal way this would have gone past someone who might have flagged this could be an issue for Ireland and it would be a good idea to run it past the lawyers. But it feels a little chaotic - someone scrambling and hopefully saner heads will step in and calm things down/take control of the situation.

I've seen various comments from other countries being very alarmed at this I think because lots of countries contracted with the pharma companies to produce in Europe to avoid the risk of Trump pulling something like that - as I say the fear of Trump was reportedly why the UK insisted on domestic production.

Edit: E.g. - "An Irish government source said article 16 may have been inadvertently triggered by "someone who did not understand the political implications" of the decision." Which has strong "we've gone on holiday by mistake" vibes.