VERNUCCIO SALVATORE

Dottore

ciclo: XXXIII



Titolo della tesi: The Abuse of Excessive Pricing and the Case of the Pharmaceutical Sector: finis opus coronat

Excessive pricing has proved to be an issue of increasing relevance and concern, as demonstrated by the number of recent cases across the world, especially in the pharmaceutical sector. The matter is still highly debated both in the literature and in courts. Besides, competition authorities have encountered considerable difficulties in enforcing the provision against excessive pricing. In particular, the key issue is how to reconcile the protection of individual health with the economic freedom of pharmaceutical companies, safeguarding investment incentives for the development of new drugs. The research develops from the decisions of courts and competition authorities on the topic across the world to examine the issues relating to: 1. How to define excessive pricing; 2. What are the possible models for a provision against excessive pricing; 3. How to assess price levels; 4. Whether to enforce the provision against excessive pricing; 5. When to do so; 6. How the various jurisdictions have approached excessive pricing in practice; 7. How this framework applies to the pharmaceutical sector, considering its peculiarities, also in the light of recent decisions; 8. Which remedies are available to address excessive pricing. The analysis is structured so as to provide the necessary context to understand the abuse of excessive pricing, both historically and philosophically, as well as from a legal and economic standpoint, embracing a multidisciplinary approach. On the basis of this necessary premise, following a brief theoretical definition of excessive pricing, the main issues concerning the abuse itself are examined in depth. Approaching the issue from the perspective of the legislator, the work examines the possible theoretical models for a rule that, directly or indirectly, addresses the practice of excessive prices. Regarding the assessment of price levels for the identification of excessive prices, the several existent methods are reviewed. With the aim of considering these issues from a different perspective, they are linked with the evaluation of price levels in other fields of competition law. As to the enforcement of the prohibition against excessive pricing, the issue is addressed in a dialectical manner, considering the arguments in favor and against intervention, together with the conditions that make intervention appropriate. Next, the analysis considers more closely the practical cases that have shaped the form and the content of the abuse of excessive pricing in various jurisdictions. At this point, the focus shifts on the pharmaceutical sector, which represents an additional source of complexity because of its multiple specificities, especially for its nature, meaning the link to an issue as sensitive as healthcare can be. To provide depth to the analysis, various cases of excessive pricing in the pharmaceutical sector from different jurisdictions are considered. Finally, the last part is dedicated to the discussion of how the practice of excessive pricing can be addressed, on the basis of the articulated set of remedies that have been elaborated.

Produzione scientifica

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