Judgement of the Supreme Administrative Court of 3rd April 2014, Case no. 0748/07

This decision was pronounced in relation to an appeal to the Supreme Administrative Court in response to the decision by the Administrative and Fiscal Court (“TAF”) of Lisbon, which absolved the State and Infarmed from the request for their mutual conviction for the compensation payment in the amount of 954.367 ,243$00. This value corresponds to the amount of damages which the author claimed to have suffered as a result of the delay by the Administration in issuing the authorization for the introduction of the medicinal product Ogasto (which contains Lansoprazole) on the market. TAF of Lisbon justified the acquittal of the defendants by considering the State as an illegitimate part and by clarifying that the right of the author had prescribed or, if that was not the case, the absolute inexistence of the same right.

In the appeal by the plaintiff, several conclusions were presented. The plaintiff based its right to compensation on the fact that Infarmed deferred the authorization for the introduction of the medicinal product, Ogasto, on the market with significant delay, and that the prescription deadline only started to count when  the plaintiff (here as an appellant) acquired the information regarding the right for compensation so that the plaintiff could exercise it, because that right cannot be exercised prior to the expressed approval of the request.

The judgment under review concluded that the breach of the term does not correspond to an illegality for the purposes of liability, because the rule infringed serves a public interest – the provision of new medicinal products to the public as soon as possible –, furthermore, the term in question is considered to be an ordering and disciplinary term, and the non-observance of such term could not substantiate the claim for damages by the plaintiff. The judgement emphasizes that it is impossible for such a rule - that only concerns formal interests - to provide the basis for compensation for damages that result from the offence of material interests. Under these terms, the court dismissed the appeal and confirmed the decision by the TAF of Lisbon.