Excessive Pricing of Pharmaceuticals in EU Law : Balancing Competition, Innovation and Regulation

Abstract: This article discusses the prosecution of excessive pricing cases regarding pharmaceutical products under EU law in its regulatory context. In recent years the legal framework for the pursuit of such cases, based on the United Brands precedent, has been established more firmly. The degree of risk and innovation involved in bringing the drugs concerned to market has become key to the competitive assessment of the pricing practices involved. This now allows certain cases regarding drugs that still enjoy regulatory exclusivity to be brought as opposed to focusing exclusively on older generic drugs enjoying niche dominance. At the same time regulatory solutions to problems of market power and pricing in a context of greater or lesser innovation remain important, because competition law enforcement is not suited to playing a structural role here. Instead, it can help to signal problems, establish principles and guard boundaries. Regulation and competition are not alternatives, but complementary