UK tipped for ‘messy’ AstraZeneca bust-up in ‘violation of EU’s power’ to save vaccines

Vaccines ‘don’t work equally against covid variants’ says expert

European Commission President Ursula von der Leyen reignited demands for Oxford-produced coronavirus vaccines to be diverted from the UK to member states to make up for production shortfalls. It came as government advisory bodies in France and Sweden snubbed UK health officials by recommending the vaccine should be prioritised for people younger than 65, while Poland set its threshold at 60. The three countries joined Germany and Italy in issuing such recommendations, even though the EU’s regulator cleared the vaccine for all adults and UK experts say it provides “high levels of protection” for all ages. 

Brussels has also questioned whether AstraZeneca had previously shipped European-made doses to fulfil Britain’s order earlier this year and is now calling for their factories in the UK to work overtime to meet the bloc’s demands.

The EU faced global criticism for its handling of the situation, including its threats to introduce controls on vaccine exports that threatened to tear-up the Brexit agreement – but it is not the first time the bloc has faced a run-in with the UK and AstraZeneca.

The company’s recent vaccine success comes seven years after AstraZeneca rejected a £65billion takeover bid from Pfizer, which sparked fears in the UK over potential job losses in the event that Pfizer moved its research and manufacturing to the US. 

Then Prime Minister David Cameron initially indicated that he would not interfere in the bid.

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However, he later U-turned and declared he wanted further commitments from Pfizer before giving his blessing to any takeover of Britain’s second-largest drugmaker at the time.

He also did not rule out the possibility that the takeover would be subject to a “public interest test” – one of the few occasions when ministers can intervene.

But competition lawyers warned that any attempt to apply a public interest test to Pfizer’s approach of AstraZeneca would run into serious difficulties with the European Commission.

The Enterprise Act allows UK competition authorities to intervene in international takeovers but only in deals concerning national security, media plurality and financial stability issues. 

To extend this “rare and extreme” measure to a pharmaceutical deal would have been seen as a “violation of Brussels’ powers,” according to experts, as the UK was still an EU member state at the time.

Anthony Woolich, a competition partner at international commerce law firm, Holman Fenwick Willan LLP, said that it would be “very hard for the Government to intervene”.

He added: “The whole point about the European Commission is that where you have big mergers they should be regulated centrally and individual member states should not be able to intervene except on exceptional grounds.” 

But Mr Cameron said he would do “what is right for Britain” should a formal bid be made by Pfizer, and then Business Secretary, Vince Cable, said that he would “not rule out intervention”.

It is thought that the US pharmaceutical giant was unlikely to be hostile, which would have involved going directly to shareholders with its proposals, should it be rejected for a third time.

Fund manager at AstraZeneca shareholder Axa Investment Managers, Richard Marwood noted it was “much more straightforward” with a deal that is recommended by the target’s board. He added that “it all gets a bit messy if you go hostile”.

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But a number of European legal specialists claimed the chances of using a public interest defence in the case were dead in the water.

Romano Subiotto, from law firm Cleary Gottlieb Steen & Hamilton, said: “Any political attempt to influence a Commission merger review will be rejected out of hand. 

“There are clear rules surrounding this test and the pharmaceutical sector does not apply.”

The Government would have to prove its use of the public interest test would not prioritise British interests above other European member states. 

Given political interest is focused upon safeguarding jobs and scientific facilities, this would run into difficulties.

But Alec Burnside, a Brussels-based partner at law firm Cadwalader, raised the possibility of the UK Government interpreting “public security” to include a protection of public health supplies. 

This could have included the protection of vaccine manufacturing facilities in case of a pandemic.  

He said in 2014: “There is some scope for manoeuvre to apply this, but it would be closely overseen by the Commission.”

But Mr Subiotto said this notion would be a “very high hurdle” to satisfy such a requirement. 

In the end, however, AstraZeneca Chief Executive Pascal Soriot and his colleagues managed to deflect the £65billion bid, arguing it “fell short” of the company’s value.

Mr Soriot was fiercely quizzed by investors on whether he should have accepted the Pfizer deal.

But Emily Field, head of European pharmaceutical research at Barclays, recently told The Telegraph that it paid off.

He said: “Certainly judging from 2014 up to today, you can really point to AstraZeneca as far and away one of the great success stories within the pharmaceutical industry. 

“It was a company that was perhaps vulnerable in that it was going through patent expiries, but has done an amazing job moving up the innovation curve, particularly with oncology and collaborations with other players, the earnings have been totally transformed.”

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