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Dutch Fight Over H5N1 Export Rules Moves to Court of Appeal

4 November 2013 2:15 pm
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Fouchier's case will now move to the Court of Appeal in Amsterdam.

Marion Golsteijn, Wikimedia Commons

Next stop. Fouchier's case will now move to the Court of Appeal in Amsterdam.

AMSTERDAM—The legal battle between Ron Fouchier and the Dutch government over the publication of controversial research on the H5N1 avian influenza virus is set to continue. On Friday, Fouchier’s employer, Erasmus MC in Rotterdam, formally appealed a ruling by a Dutch court that the government was within its rights when it put limits on Fouchier’s freedom to publish his work with the virus.

The appeal is the latest twist in the long-running saga of two papers showing how a few mutations can make H5N1 more transmissible among mammals. Fouchier’s paper was published in Science in June 2012—but before submitting the manuscript, Fouchier had to obtain a so-called export license because the government deemed the work of potential interest by bioterrorists. Fouchier did so under protest, and Erasmus MC went to court over the issue. On 20 September, the district court in Haarlem ruled that the government correctly interpreted a 2009 European regulation that seeks to prevent the proliferation of nuclear, chemical and biological weapons.

Fouchier—who has since applied for a second export license, for an as-yet unpublished H5N1 paper—says he’s satisfied that Erasmus MC wants to continue the fight, which will now move to the Court of Appeal in Amsterdam. He says the Dutch export rules are an attack on academic freedom; others have pointed out that the court ruling also raises a number of new questions about how the sensitive studies are regulated.

Meanwhile, the European Society for Virology (ESV) has sided with Fouchier on the issue. In a letter to José Manuel Barroso, the president of the European Commission, ESV President Giorgio Palù warns that “this Dutch ruling may have far-stretching implications for research and public and animal health within all EU Member States.”

Requiring export licenses for H5N1 and the many dozens of other pathogens covered by the E.U. regulation is not only at odds with the principle of academic freedom but may also cause delays in the dissemination of scientific information on infectious diseases and may conflict with international agreements, such as the International Health Regulations, Palù writes. The letter says the issue should be debated at the European level.

ESV is the first scientific society to take sides in the issue; Fouchier says he has heard that other organizations are now preparing to speak out as well. The Royal Netherlands Academy of Arts and Sciences has not taken a position; it is awaiting a report on dual-use regulation by an independent panel, requested by the Dutch government, which a spokesperson says will be presented later this month.