Excessive Pharmaceutical Prices as an Anticompetitive Practice in TRIPS and European Competition Law

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The issue of securing access to patented pharmaceutical products has been in the forefront of global legal debate for many years. This debate intensified further following the enactment of the TRIPS agreement and the global enforcement of Intellectual Property Rights such as patents through the World Trade Organization. To combat the problem, compulsory licensing has been forwarded as one solution, though hitherto mainly discussed from the human rights and right to health perspectives. Less attention has been focused on excessive prices of medicines as an anticompetitive practice in and out of themselves, and how competition law and legal-economics theories and models can inform this deadlocked issue.

Such a treatment of excessive prices under competition law would constitute a sound legal basis for anti-competetive enforcement such as compuslory licensing but also make other tools available to competition authorities such as fines. This could be done making use of the flexibilities entailed in this regard in the TRIPS agreement context, mainly through article 31(k) and article 40.

Shifting focus to the European Competition Law, the notion of “unfair” or excessive prices has been enshrined in article 102 TFEU regarding exploitative pricing abuses by a dominant firm, although the application and enforcement of this has been rather limited in practice. Recent case law and an evoloution of thought regarding competition law and legal-economics theories point however to a possible policy shift in this regard.

The paper hence analyses the unlocked potential entailed in competition law in treating excessive pharmaceutical prices as an anticompetitive practice where applicable and discusses the legal-economic theories underpinning this discourse.
Original languageEnglish
Title of host publicationNew Developments in Competition Law and Economics
EditorsKlaus Mathis, Avishalom Tor
Number of pages24
Publication date15 Mar 2019
ISBN (Print)9783030116101
ISBN (Electronic)9783030116118
Publication statusPublished - 15 Mar 2019
Event7th Law and Economics Conference in Lucerne: New Developments in Competition Law and Economics - University of Lucerne, Lucerne, Switzerland
Duration: 13 Apr 201814 Apr 2018


Conference7th Law and Economics Conference in Lucerne
LocationUniversity of Lucerne

Bibliographical note

Conference Paper for 7th Law and Economics Conference in Lucerne, Switzerland. Forthcoming at Springer Verlag in 2019 in "New Developments in Competition Law and Economics" edited by Prof. Dr. Klaus Mathis and Prof. Avishalom Tor.

    Research areas

  • Faculty of Law - Excessive Prices, Competition Law, Intellectual Property Law, pharmaceutical policy, Competition policy, patent law, abuse of dominant position, Article 102 TFEU, Excessive pricing, Unfair prices, Unfair Pricing, EU competition law, EU Intellectual Property Law, Legal Economics, Chicago School of Economics, Ordo-liberal Manifesto

ID: 203010018