The pharmaceutical payback. The balancing of interests facing resource scarcity

The pharmaceutical «payback» mechanism is complex, given the multiple public and private interests involved. Indeed, as conceived, it allows for balancing the public spending restraint (Article 81 of the Constitution) and citizens’ right to health (art. 32 Cost). However, the mechanism has several problematic aspects that can prejudice companies and consequently increase litigation. Considering the recent judgments of the Lazio Regional Administrative Tribunal, this paper aims to analyse the pharmaceutical payback mechanism by highlighting its peculiarities and critical issues, ultimately to reflect on a possible replacement. However, to date, as will be discussed, such a substitution appears to be difficult given the need to ensure the sustainability of pharmaceutical spending and, therefore, access to medicines.