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Mutant-flu researchers appeal Dutch court ruling on export permits

The Erasmus Medical Center in Rotterdam, the Netherlands, where researchers led by Ron Fouchier created mammalian-transmissible strains of the H5N1 avian flu virus, this week appealed a September court ruling obliging it to request an export permit before submitting such research for publication.

Export controls are part of an international legal regime intended to prevent exports of technology or information that could result in proliferation of chemical or biological weapons — including ‘dual-use’ materials that can have both legitimate and malicious uses. H5N1 is one of a list of more than a hundred dangerous human, animal, and plant pathogens that fall under export control laws.

Last year, the Dutch government invoked European export control legislation to oblige Fouchier and the centre to obtain an export permit before publishing a paper in Science describing how he engineered the strains. Fouchier initially threatened to defy the government by publishing without a permit, but conceded under protest. He applied for a permit in April, and the government granted it a few days later. (See “The Netherlands grants export licence for mutant flu work” and the Nature Special on Mutant flu.)

Although Erasmus MC acquiesced to the government, it also filed a legal challenge, arguing that it should not have needed to apply for a permit – on the grounds that the work fell under exemptions in EU export control laws for ‘basic research’, and that it described methods that were already in the public domain (see “Court upholds need for export permits for risky flu research“). One goal of the challenge was also to have future papers on similar research exempted from the need to apply for an export permit before publishing.

On 20 September, however, a ruling by the district court of the North Holland region of the Netherlands rejected these arguments, affirming that the research had practical goals beyond basic research, and that its methodology was novel — and so did not qualify for exemption. The court also argued that the need to prevent the proliferation of biological weapons outweighed the few weeks of delay necessary for government review of such papers.

It’s this ruling that Erasmus MC has now decided to appeal, just as the six week window in which it could do so drew to a close. Fouchier was unavailable for comment. A spokesman for the centre says that because the case is under appeal, Erasmus MC and its staff may not discuss the issues with the media.

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