Covid-19 vaccines: AstraZeneca did not make its “best reasonable efforts”
Estimated time to read this article2 min
Date of publication21 June 2021
Author(s)Paul Alain Foriers, Rafaël Jafferali, Charles-Edouard Lambert, Fanny Laune, Marie Nelles
Simont Braun is proud to represent the European Commission and the 27 Member States in the judicial proceedings against AstraZeneca to deliver millions of Covid-19 vaccine doses.
On 18 June, the Brussels French-speaking Court of first instance ruled that AstraZeneca grossly and intentionally breached its agreement with the EC. It ordered the company to comply with the contractual principles laid down in the advance purchase agreement concluded with the EC. This is a major step forward for the European Union as it will help to accelerate the supply of Covid-19 vaccines by AstraZeneca to the Member States. The decision is available here.
The case is urgent
The Court followed the arguments of the EC regarding the emergency. The damaging consequences of delays in vaccination against Covid-19 justify an immediate (interim) decision. The Court therefore confirmed the urgency.
Serious breach by AstraZeneca
The Court recognised that AstraZeneca has seriously and intentionally breached the agreement with the EC by not using the UK manufacturing site for the production and delivery of vaccines to the EU, but rather to supply the UK. The Court hence confirmed that making its “best reasonable efforts” is a real binding obligation. This prioritisation of supplies for the UK by AstraZeneca constitutes a substantial breach of the advance purchase agreement, said the Court.
In light of such breach, the Court ordered AstraZeneca to deliver 50 million doses (on top of the 30,2 million doses already delivered until the end of March 2021), in three instalments until 27 September with a 10 EUR penalty for each dose not delivered in due time.
On the principles, the Court entirely followed the position of the EC and of the 27 Member States. The Court has laid down the tracks for the delivery of future doses on the basis of clear contractual principles. The company will now have to ensure production and delivery of the doses in line with these principles.
Another chamber of the Belgian Court will again hear the case on 24 and 29 September to assess whether AstraZeneca has respected its obligations as requested by the Court.
The Simont Braun team which advises the European Commission is led by partner Rafaël Jafferali and composed of Paul Alain Foriers (partner), Fanny Laune (counsel), Charles-Edouard Lambert and Marie Nelles (associates).