Tar Lazio on payback: "Decision in July 2017, but AIFA provides the accounts"

Rome, 19 September - The third quarter section of the Lazio Regional Administrative Court has once again ruled on the thorny issue of the payback to be paid by the pharmaceutical industries for the shelves (about 1.5 billion euros) of hospital pharmaceutical expenditure for the years from 2013 to 2015.

The multiple appeals advanced by the companies have produced a series of substantially overlapping orders (at this link the text of one of them), published last September 15, with which the administrative judges decided to accept the precautionary requests advanced by the applicants and, ordering AIFA to produce a report capable of bringing clarity to the matter so far failed, postpone any decision to the public hearing set for July 11, 2017.

The Tar Lazio, in essence, disputes "the correctness of Aifa's counts, as well as the adequacy of the data to support them" and notes the need for AIFA to prepare and provide (by 31 March 2017) a detailed preliminary report relating to the specific debt positions of each of the appellant companies, for investigation purposes, "in which account is explicitly given of the amount of the budget assigned to the company for each of the relevant years" reads the ordinance "as well as the amount of the compensation (territorial and/or hospital) charged to it, the methods of its calculation and the data and documents on which this calculation was based."

THEIn short, DG Aifa (which at the time may not be the current one) will have to clarify and will have until March 31 next year to do so. Meanwhile, due to the outcome of the Aifa-companies dispute on the shelves, there are approximately 300 million euros - or the difference between what AIFA requested for the payback and the sums paid by the appellants - which at least for the moment are missing from the appeal, compared to the amounts set aside in the budget. And obviously an unequal situation has arisen between the companies that have paid the required payback quotas in full and those that, on the other hand, have not done so by resisting in court.

The question remains completely open: if the Tar, in the decision on the merits of July 2017, agrees with AIFA, the appellant companies that have decided not to disburse the requested sums, keeping them in cash for a year, will have to pay them immediately, with the load from eleven of the interests. But if the administrative judges were to accept the reasons of the plaintiff companies, the problem arises of the companies (many) that have not appealed and paid everything immediately. If that "everything" were, as at that point it would likely be, too much, who and when will compensate them for the overpaid and undue sums?

Questions that remain open and which, in all likelihood, will remain so even after the ruling of the Lazio TAR expected for July 2017. Because, inevitably, the losing party will appeal to the Council of State. And for the curtain to finally fall on the payback issue, it will take even more time.

RIFday – settembre 19, 2016

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