Judgment of the Supreme Administrative Court of 20 June 2013
In a result of an action brought by INFARMED for the suspension of the effectiveness of the Marketing Authorization ("AIM") of eleven medicinal Products, the Supreme Administrative Court finally rule on the issue of unconstitutionality that has been raised around Law 62/2011, which created a system of settlement of disputes arising out of industrial property rights at stake between reference medicinal products and generic.
The Supreme Administrative Court sustained the idea that the supposed retroactivity problem of this law would only arise if this law would present an innovative content and would have the claim to apply to situations constituted before its entry into force.
According to the understanding of the Court, the application to proceedings pending at the time of entry into force of the law of article 9 of Law 62/2011, does not suffer from any type of unconstitutional issues, because of the fact that this provision is purely interpretative.
The Court also explained that the new law does not affect the industrial property right as a fundamental right, because it does not constrain or restricts the right but only sets in which molds can it be defended. Thus, its guardianship can never go through the administrative procedure, in particular in what as regards the argument that the grant of AIM puts itself at stake an industrial property right.