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Excessive pricing cases in the pharmaceutical industry: Economic considerations and practical pitfalls

Raphael de Coninck and Elina Koustoumpardi, Concurrences Review N° 3-2017, Art. N° 84663, 2017

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The authors of this On-Topic focus on the latest developments in the pharmaceutical sector. According to Ms Thill-Tayara, author of the first contribution and lawyer with Dechert Paris, if the competition agencies’ activism is partly motivated by the need to limit the expenses of national health insurances systems, this has led competition authorities to use and enforce legal concepts which may seem difficult to implement in such a specific sector. In the second article, Mr. De Coninck, economist at CRA Bruxelles, highlights the main conceptual difficulties with excessive pricing cases, and argues that such cases should be limited to truly exceptional circumstances. He discusses the numerous practical difficulties in determining whether a price can be considered as excessive, and the main pitfalls to avoid. Ms Alessandra Tonazzi, the last contribution’s author, and member of the Italian Competition Authority, focuses on the investigation by the Italian Competition Authority, concluded with an infringement decision in September 2016, into the prices charged by Aspen for a number of cancer drugs. She stresses that the Aspen case shows some of the features that many economists and lawyers would recognize as justifying an antitrust intervention.

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