Överprissättning av läkemedel - En studie av konkurrensrätten som verktyg för att balansera patenträtt och rätten till hälsa

Sammanfattning: Access to pharmaceuticals can be vital for a lot of people. The public’s right to health is ensured by article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and by article 35 of the Charter of Fundamental Rights of the European union (the EU Charter). However, pharmaceutical companies with patent rights can charge whatever price they want on medicines. Companies with patent right cannot be forced to sell to countries or people who cannot afford the company-demanded price. However, the right to freely set prices can be constrained. Prices can be controlled by patent legislation and competition law. This essay aims to explore from a critical perspective whether the EU´s competition ban of excessive pricing can regulate pharmaceutical prices enough to satisfy the right to health. Patent legislation in the EU must follow the minimum standards set by the Agreement in Trade-Related Aspects of Intellectual Property rights (TRIPS). Ensured by TRIPS, patent holders have a considerable legal protection. Nonetheless, TRIPS allows some restrictions on the patent holder´s own pricing. Restrictions are allowed to ensure that patent rights do not conflict with the right to health. Therefore, countries may under certain circumstances limit patent holder´s pricing. Price limitations can be set by law, for example price ceilings for certain drugs or restrictions of profit margins. Patent law and pricing is not harmonized within the EU. Member states are free to develop national systems, provided that the states follow the EU´s transparency directive. People living in the EU have an explicit right to health according to global treaties and the EU Charter. What the right to health means is less obvious. The UN committee has expressed that states need to keep pharmaceutical pricing at a reasonable level. However, the committee´s comments are not strictly binding. The EU has a Union-wide policy that drug prices should be reasonable, but the goal can be compromised when weighed against other Union-goals, such as innovation and accessibility. EU competition law prohibits anti-competitive behaviors, including excessive pricing. On the other hand, excessive pricing rules only apply to companies that hold a dominant market position and there is no clear guidance on how profit margins should be measured. It is unclear where prices become illegal. Practice shows that the ban only stops extreme prices that are clearly unjustified and unreasonable. Therefore, excessive pricing-rules cannot effectively regulate drug prices on their own. Although the unclarity of overpricing rules, the ban of excessive pricing can be used to balance the right to health and the rights of patent holders. The fact that balance is possible is mainly since the right to health imposes a vague obligation on states, and above all, patent law allows extensive restrictions on the pricing that pharmaceutical companies impose on citizens.