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In brief

As every year since the creation of the reference price system back in 2014, the Spanish Ministry of Health published the new Reference Price Order Order SND/1308/2021 (“Order“) on 29 November 2021. The reference price system consists of the annual revision of the maximum price at which medicinal products included in the National Health System portfolio are financed. Our team already analyzed the draft Order published on 14 July 2021, and the final text barely differs from the draft.


A closer look

By Order, the Minister of Health annually creates new reference groups of publicly financed medicinal products with their corresponding reference prices, revises the reference prices if applicable and removes those groups that no longer meet the requirements for their formation. This year was no exception and the content of the Order remains virtually unchanged from what was outlined in our alert last summer.

The main change this year has to do with the criteria used to form the reference groups, the most contentious issue ever since the inception of the reference price system. The 2020 order meant a brief interlude during which the Ministry of Health formed the reference groups with medicinal groups sharing an identical active ingredient. However, the draft Order and now the final Order attest that the Ministry of Health has come back to ATC5 classification to form the groups, based on a recent legislative change that we echoed last summer.

Those laboratories in disagreement with the reference prices set for their medicinal products are entitled to file an appeal before the Administrative Chamber of the Spanish National High Court (Audiencia Nacional) within two months (i.e., by 29 January 2022) or, alternatively, to appeal before the Minister of Health within one month (i.e., by 29 December 2021) and then appeal before the Spanish National High Court if the Minister of Health does not reconsider its position.

Author

Montserrat has extensive experience in pharmaceutical and health law, as well as in compliance, contract law, licensing, competition law and acquisitions in the pharmaceutical sector. She is the coordinator of the healthcare practice in the Barcelona office.
She assists healthcare companies throughout the life cycle of healthcare products (drugs, IVD and medical devices, combination products, cosmetics and food supplements), from R&D to commercialization and more specifically in the areas of clinical trials (agreements, regulatory procedures, processing of personal data), market access (pricing and reimbursement), products and companies regulations (MA/CE-marking, vigilances, required licenses, product classification, labelling), commercial relations between healthcare industries (distribution, (co)promotion, manufacturing, supply, licensing, partnership agreements), relations with healthcare professionals and/or patients including compliance (anti-gift and transparency laws); communication and advertising, e-health (connected devices, telemedicine, hosting of health data) and product liability. Her practice encompasses both advisory and litigation matters.
She also has considerable experience in the drafting of codes of professional ethics and conducting compliance audits, and advising on advertising and promotion of medicines and medical devices, including via the internet, online advertising and social media. Montserrat advises on a wide range of agreements related to the pharmaceutical industry, such as license and distribution agreements, clinical trial agreements, and supply and manufacturing agreements.

Author

Sheila Mendez is an Associate in Baker McKenzie Barcelona office.

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