By Robert O’Donoghue QC –
Until recently, excessive pricing as an antitrust violation in the EU was considered a dead letter – there had been no proceedings for over a decade. The last few years have witnessed a dramatic surge in such cases, almost exclusively in the pharmaceutical sector. This piece argues that in a market as highly regulated in the EU as pharmaceuticals, including on the pricing side, antitrust law is an inappropriate tool. The antitrust notion of a fair price – even assuming there is such a thing – is singularly unsuited for deciding what is essentially a political question as to how much the State should pay for prescription drugs. A proper assessment of this kind involves consideration of a range of economic and non-economic issues that go far beyond the relatively narrow consumer welfare focus of antitrust. But one can go further. As a matter of Treaty law, the EU has no competence over public health. As a matter of national law, each EU Member State has set up complex legislative machinery to give effect to its public health objectives in a manner appropriate for its own particular circumstances. Using antitrust law as a means to re-evaluate these decisions or replace them is inapposite and raises profound issues of democracy and constitutionality. If States want more, or different, regulation the democratic answer is to legislate and not do so by stealth using antitrust law.