Stephen Donnelly’s AstraZeneca Woes

Stephen Donnelly the independent-turned-Social-Democrat-turned-Independent-turned-Fianna-Fáil TD for Wicklow is not new to gaffes.

Indeed he would be quite prone to them by any measure, such as when he had materials on his website lambasting Fianna Fáil after joining them dragged up in radio interview. Or when in a now deleted tweet from April 2017 he mistook Fine Gael for Fianna Fáil: “Policies today, and team today, very focused on pursuing a social democratic model, versus right wing approach of FF”.

At a Direct Provision protest which I attended in Wicklow Town, Donnelly (alongside Sinn Féin and the other gombeens) blamed the people for not being welcoming enough. Not welcoming enough of the Reception and Integration Agency’s decision to relocate hundreds of migrants into the town’s only hotel. Donnelly’s response wasn’t that more resources would be needed, the numbers would be too high, or tried to assuage concerns — rather, his gripe was “why wasn’t a second hotel built” years ago.

Which makes his choice for a Ministerial role by Micheál Martin all the more perplexing. That is until you come to realise Martin doesn’t care for his party or the country, and merely wants pliant supporters around him.

In typical Donnelly fashion, the Health Minister has again landed himself in hot water by claiming that the State would be joining a European legal challenge against AstraZeneca. The Commission initially (and quite strongly) rejected Donnelly’s assertion, and then announced they had indeed taken a legal challenge four days later. Donnelly it seems, has loose lips.

As the AstraZeneca contract has been leaked in full, it is well worth looking at the particulars.

AstraZeneca has a requirement to deliver approximately 30-40 million doses by end of 2020 followed by 80 -100 million doses in Q1 2021, and the remainder of the Initial Europe Doses by the end of Q2 2021.

The remainder would amount to between 160-190 million doses. The delays in production mean that by the end of March 2021 they had only delivered half of what they were contractually obliged to provide.

The breakdown given was that December 2020 would see 30 million doses, January 40 million, February 30 million, March 20 million, April 80 million, March 40 million and June 60 million.

The continuous delays in manufacturing have meant that we only reached the end-of-March target for vaccinations for adults, three quarters of the way through April, a three-week backlog.

While AstraZeneca must make its “best reasonable effort” to ensure those timelines are met, the contract explicitly states that the Commission and Member States waive any right to legal action in the event of production not being able to produce enough. 

Under s.15(1)(e) the Commission and Member States “waive and release any claim against AstraZeneca arising out of or relating to […] delays in the delivery of the Vaccine under this Agreement.”

The same article also indemnifies AstraZeneca against claims relating to the “safety or efficacy of the Vaccine,” and (among a few others) “issues relating to storage or transport conditions […]”.

The pricing for the doses are quite modest at €2.90 per dose, and AstraZeneca very kindly agreed to produce them at “no profit or loss to AstraZeneca” for an estimated cost of €870 million, made up of a fixed amount of €336 million paid by the Commission and €534 million paid by the Member States.  It should be said that royalties owed by AstraZeneca are included in the “costs of goods”. 

In return, all the costs were borne by the Member States and Commission in its production, everything from “glass vials/stoppers” and “media,” all the way up to the “fill, finish and package (of) the final Vaccine for distribution”. The Commission also acknowledges that (for the purposes of the contract) all IP rights in the vaccine (its “Know How”) belong to AstraZeneca, but recognises that AstraZeneca may owe royalties to third parties.

The indemnification of AstraZeneca from any repercussions is total and complete. Section 14 (“Indemnification”) reads that Astrazeneca and all its affiliates/sub-contractors (and so on) are not liable for any costs relating to or resulting from “death, physical, mental or emotional injury, illness, disability or condition, fear of the foregoing, property loss or damage […] relating to or arising from the use of the vaccine […] regardless of […] whether the claim of a defect originates from the distribution, administration and use […] of the vaccine in its jurisdiction.” (Section condensed by author.)

It would seem then, that the Commission’s legal action is, at best, spurious. How they intend to argue that they didn’t waive the rights they explicitly waived, is beyond me. Thankfully the Court of Justice of the European Union is a politically motivated Court, and has let the Commission get away with much worse before, so they would be well-trained in looking past reality and seeing only what they wish to see once again.