A Belgian judge has begun hearing an urgent European Commission request for a court order requiring AstraZeneca to deliver millions more vaccines to the bloc, in a case that may reflect the EU’s anger more than its need for doses.
The court, which will examine in a later case whether the Anglo-Swedish pharmaceutical company broke its contract with the EU, heard the commission argue on Wednesday that an “urgent need” for the shots warranted an emergency order.
AstraZeneca supplied only 30m of the 120m Covid-19 vaccine doses it was scheduled to deliver to the bloc by the end of March, and the commission says the company is on course to deliver 70m of a promised 180m in the second quarter.
The commission’s lawyer, Rafaël Jafferali, told the court the company expected to deliver the full 300m doses in its contract by the end of December, but added: “With a six-month delay, it’s obviously a failure.”
Jafferali said the company should have used all four production plants listed in the contract, including in the UK, in line with a “best reasonable efforts” clause, arguing that 50m doses that should have come to the EU had gone to other countries.
He also accused the company of misleading the commission by providing it with unclear information on expected delivery delays. “The information provided by AstraZeneca did not allow us to fully understand the situation before mid-March 2021,” he said.
However, even if the court rules in the commission’s favour, it is not clear whether the firm could deliver the missing doses – nor, with alternative vaccine supplies now plentiful, many countries restricting the shot to older age groups and some even donating unwanted AstraZeneca doses, how far the bloc actually needs them.
The EU expects to have received more than 1bn vaccine doses by the end of September, enough to inoculate all eligible adults by the end of the summer rather than the 70% it initially targeted.
AstraZeneca, which has blamed the shortfall in EU deliveries on production difficulties at its European plants and export restrictions, is due to present its arguments to the court on Wednesday afternoon. It said last month it had “fully complied” with its contract and described any legal action as “without merit”.
While the EU says the case is only about forcing the drugmaker to deliver what it promised, legal experts have said it seems likely the commission is also venting its anger and aiming to show it is not willing to be taken for a ride.
AstraZeneca may invoke a clause in its contract in which the commission waived the right to sue over any eventual delay in deliveries, although this could be rejected by the court because such a clause – essentially allowing one of the parties to ignore a key part of the contract – is not allowed under Belgian law.
Experts have said that in its ruling, expected by the end of June, the court may refer to the performance of the EU’s other suppliers, all of which have met or exceeded their contract commitments, and could order AstraZeneca to pay compensation.
After taking delivery of just 106m doses in the first quarter, the 27-member bloc is on course to receive 413m doses in the second and another 529m in the third, mainly from Pfizer/BioNTech, Johnson & Johnson and Moderna.
Fears over a small number of cases in AstraZeneca recipients of a rare blood clotting syndrome have prompted several EU countries – and the UK – to offer alternative shots to younger populations, reducing demand and depressing take-up.
Some countries such as Denmark, which is offering the shot only to volunteers, have cancelled AstraZeneca orders and are donating existing stock. In France, the take-up rate for AstraZeneca is 59.6% against 89% for Moderna and 99% for Pfizer/BioNTech.
EU leaders agreed this week to donate at least 100m doses to poorer nations outside the bloc by the end of the year, with Italy pledging 15m and France and Germany 30m each. Many of the vaccines are likely to be unused AstraZeneca shots.
France on Wednesday trebled the number of doses of the Anglo-Swedish shot it was due to donate next month to the Covax programme backed by the World Health Organization and the Gavi vaccine alliance.