The Italian pharmaceutical antitrust (r)evolution and its most recent example: the Aspen case

Abstract:

The Italian Competition Authority (ICA) has elected the pharmaceutical sector as the field where to expand the boundaries of antitrust enforcement and to develop innovative theories of harm. Pfizer, Roche/Novartis and Aspen are the milestones of this new path.

The ICA’s choice is not accidental: pharmaceuticals are primary goods that call for protection, are entrusted to private hands which frequently try to exploit their essential nature and ensure visibility to antitrust enforcement. Aspen is the most recent example of ICA’s approach, reviving the dormant category of excessive pricing and potentially opening up the Pandora’s box of pharmaceutical prices. While the case bears very specific features which limit its precedential value, the ICA’s general attitude vis-à-vis excessive pricing could be easily replicated. The application of the United Brands test in Aspen can be particularly worrisome for pharmaceutical companies, because the ICA is not particularly careful in choosing the correct comparators to assess the excessiveness and unfairness of a given pharmaceutical price. The chances of finding of infringements and fines are particularly increased in case of premium/life-saving products. Furthermore, following Aspen decision, the EU Commission and other authorities have opened excessive pricing proceedings against Aspen, showing the widespread impact of the case.