*removes BM satire typing mittens (patent pending)*
*Serious face*
**Very serious face**
*Trigger warning: light on gags, heavy on legal wording.*
If the European Commission's covid-jab-purchase agreement with CureVac is anything to go by, EUHQ may not have much of a legal leg to stand on with its gripes over AstraZeneca's vaccine-delivery delays.
The commission has refused to make its "Advance Purchase Agreements" with such companies available, citing sensitivities over business secrets and price negotiations. But the deal with CureVac, only slightly redacted, is indeed available. (Something, we assume, to do with US market-regulator reporting requirements.)
CureVac's APA dates from 17 November. AstraZeneca's was the EU's very first one, back in August last year. There's no guarantee the clauses will be identical or even similar, but the CureVac one (which, you'd hope, would be the more evolved), is spotted with get-outs over potential delays in delivery.
If AstraZeneca's APA is anything like CureVac's, it would go some way to explain how the company has been seemingly able to fall short of its commitments to the EU. And why the commission has had to resort to means outside the agreement to try and enforce it, such as potential export measures.
For the nerdier among you with lockdown time on their hands, the CureVac APA is here (European Commisison website), or here (US regulatory filing).
If it's all a bit tl;dr, here are are the potted highlights that may be giving AstraZeneca's legal team some comfort right now. (The extracts have been edited for brevity, without removing any vital context)
"The contractor commits to use reasonable best efforts [...] to establish sufficient manufacturing capacities to enable the manufacturing and supply of the contractually agreed volumes of the Product to the participating Member States in accordance with the estimated delivery schedule" the APA with CureVac says.
'Reasonable best efforts' are defined as ": a reasonable degree of best effort to accomplish a given task, acknowledging that such things as [...] contractor's commitments to other purchasers of the Product; [...] and any other currently unknown factors which may delay or render impossible, contractor's successful completion of the particular task, including [...] meeting delivery schedules [...] may be beyond the complete control of the contractor..."
Then there's this legal escape clause:
"In light of the uncertainties both with respect to the development of the Product and the accelerated establishment of sufficient manufacturing capacities, the delivery dates set out in this APA are the contractor's current best estimates only and subject to change."
"Due to possible delays in the authorisation, production and release of the Product, no Product or only reduced volumes of the Product may be available at the estimated delivery dates set out in this APA. In the case of delays to the anticipated availability of the Product, the contractor aims to allocate the doses of the Product fairly across the demand of doses, which the contractor has or will contractually commit to towards its present and future customers, as such doses become available."
And finally, under the section specifically referring to 'delays':
"The Parties acknowledge that there is a risk that [...] the time-line for scaling up the production of the Product may be delayed."
There is indeed a requirement to 'inform' of any delay, and give reasons. But other than that, the two sticks the commission has to enforce the agreement are cancellation - not in the EU's interest if it wants to get its hands on the vaccines - and litigation through the Belgian courts - not exactly the swiftest or friendliest of jurisdictions for potential litigants.
AstraZeneca's agreement with the commission may look nothing like this one, although that seems unlikely. And even if it is, look out for CureVac and any others with an agreement based on this model APA feeling able to view their EU delivery commitments with some elasticity.
And if this has been all a bit uncharacteristically serious and ranty, here's a fart gag I made earlier.
BM