1. The background
The Regional Technical Committee of the Veneto Region (the “Committee” and the “Region”), is in charge of delivering opinions and recommendations on single drugs or therapeutic categories, drawing up pharmacological guidelines and diagnostic-therapeutic pathways, monitoring the appropriateness, and the safety and expenditure of medicines. The Committee approved some evidence-based recommendations regarding the prescription of innovative oncology medicines and, in particular, Avastin and Perjeta, marketed by Roche S.p.A. (“Roche”). The Committee’s recommendations classified Avastin as:
- ‘moderately recommended’ in the treatment of patients with certain conditions,
- ‘moderately recommended’ for patients with a specific condition, and
- ‘not recommended’ in two other cases.
Roche challenged these recommendations before the administrative court of first instance of the Region (“TAR Veneto”), which rejected Roche’s claim (ruling no. 1150 of 6 November 2015). Then, Roche appealed the TAR’s ruling before the Consiglio di Stato.
2. The principles highlighted by the Consiglio di Stato
The Consiglio di Stato confirmed the principle, already stated in several previous judgements, that the AIFA is the entity entitled by the Italian law with all the functions relating to the release of marketing authorization of medicinal products, their classification, their therapeutic indications, the determination of prices, the reimbursement regime, and the monitoring of their consumption. These competences have been repeatedly and uniquely qualified as exclusive.
Therefore, if a drug is classified by AIFA as hospital drug (H class), this means that it can only be used in a hospital environment, as constituting the hospital level of assistance guaranteed by the National Health Service. Hospital treatment includes the administration of drugs and, in this case, of innovative oncology medicines, such as Avastin and Perjeta. Consequently, regions are precluded from establishing more restrictive conditions and criteria for the delivery of a medicinal product classified by the AIFA as a hospital drug, since such a limitation would inevitably jeopardize the essential levels of assistance that shall be provided by the National Health Service to all citizens, in equal conditions, throughout the national territory.
3. The Consiglio di Stato’s decision
The principles above, applied to the present case, led the Consiglio di Stato to uphold Roche’s appeal and annul the Veneto Region recommendations for the following main reasons:
(i) The recommendations introduced additional limits and stringent controls over the use of certain pharmacological therapies with respect to the conditions and requirements already identified at the national level by the AIFA, departing sensitively from the AIFA’s national determinations and discriminating against patients who are resident in Veneto (since the Region would not grant, from this respect, the same level of assistance as that granted by the other Italian regions),
(ii) the Region, in pursuing the purpose of limiting health spending, has established, with these recommendations, well-defined prescriptive objectives that affect the merits of the choices of prescribing physicians who thus undergo strong, inevitable conditioning. It is also evident from the circumstance that the recommendations provide for monitoring of their implementation, every six months, by verifying compliance with specific expected usage indicators and the allocation of the economic resources, and
(iii) the recommendations, in directing doctors and healthcare facilities to the use of alternative therapies instead of the drugs qualified as moderately recommended or even in some cases not recommended, has established, implicitly but clearly, an equivalence between different active principles, which would in turn require a prior evaluation by the AIFA, the only entity qualified by the law to make such an assessment.