[Ip-health] OECD Competition Review on "TAC Complaint"

[Zackie Achmat]

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Dear All

A message from Fatima Hassan of the AIDS Law Project:

"The OECD Peer review of Competition law and policy in South Africa contain=
s important observations about "the TAC complaint" (Tau and Others v GSK an=
d Others) Attached are the comments by the author, Michael Wise. The full r=
eport is available on the OECD website."

Of course, the article does not mention international human rights obligati=
ons. South Africa has signed and ratified many instruments that guarantee t=
he rights to life, dignity, equality and our Constitution guarantees the ri=
ght to access health care. The Complaint papers are available on the TAC we=
bsite www.tac.org.za

Regards

Zackie

Competition Law and Policy in South Africa



OECD Global Forum on Competition Peer Review:

Paris, 11 February 2003





Page 13


In September 2002, an NGO, the Treatment Action Campaign ("TAC"), submitted=
 a(nother) complaint to the Commission.  The TAC complaint, on behalf of pa=
tients and medical professionals, also alleges that the prices have been to=
o high.  The TAC submission includes dozens of expert and individual affida=
vits and other materials, and it demands that the Commission give it top pr=
iority and impose stiff penalties on the pharmaceutical companies.  The Com=
mission and the Tribunal may thus have to decide about how the Competition =
Act can be used to control prices in a case that presents two complicating =
factors: the relationship between competition policy and intellectual prope=
rty rights, including international recognition of those rights, and the pu=
blic interest in dealing with the large-scale public health problem represe=
nted by AIDS.  The "public image" as such is not a basis for decision under=
 the Competition Act, of course.  A Commission or Tribunal decision about t=
hese complaints will have to be motivated by considerations of competition =
policy and the particular policies and goals that are identified in the Com=
petition Act.





Page 37


One theme of South Africa's constitutional transformation in the 1990s was =
to redress economic imbalances, which corresponded to the racial divisions =
in the society.  Stronger competition policy was proposed as a tool to help=
 undo corporate structures that were charged with having prevented broader =
development and participation.  This theme is reminiscent of the motivation=
 of competition policy reforms in countries such as Hungary, Mexico and Kor=
ea.  In these countries, vigorous competition policy was also proposed as a=
n element of a deliberate strategy of large-scale restructuring and reform.=
  And the development dimension underlies current enforcement matters, nota=
bly the TAC complaint about the prices of pharmaceuticals to treat AIDS.  T=
he combination of perspectives and circumstances in South Africa make it an=
 obvious venue for this controversy.  The complaint was asserted on behalf =
of patients that come mostly from the population that are not part of the f=
ully-developed economy, and it is aimed at international pharmaceutical com=
panies, which are.  And the complaint was filed under a Competition Act tha=
t promises to make available the capacities of analysis and remedy that are=
 familiar in other jurisdictions.





Page 42


Another source of third-party support is complainants.  In the South Africa=
n system, the Commission is a gatekeeper.  Private parties must go to the C=
ommission first before they can pursue a claim on their own.  But there is =
no impediment to their helping the Commission pursue it for them.  The TAC =
AIDS complaint represents such an opportunity, where the private sector rep=
resentative is more than willing to help.  Help may be particularly necessa=
ry in dealing with the complex issues, which would stretch the capacities o=
f many competition agencies.  To be sure, the high profile of the case impl=
ies that the process at the Commission and the Tribunal is likely to serve =
mostly as a fulcrum on which to turn the levers of public relations and pol=
itical pressure.  But the subject is timely and important, not only to Sout=
h Africa but to many other countries.  The legal, economic, and policy issu=
es raised are at the cutting edge of developments in international competit=
ion and intellectual property law and policy.  The case could be an occasio=
n for inviting international co-operation, not just to get information but =
also to compare views about the thornier legal and analytic issues about in=
tellectual property rights and the relationships with international trade c=
ommitments and obligations.




ends

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