The National Court has issued a ruling endorsing opacity in the pricing of medicines funded with public money, deciding against the No es Sano campaign and annulling the decision issued by the Council for Transparency and Good Governance. In 2023, the Council had ordered the publication of the cost of the medicine Zolgensma, the most expensive drug ever funded by Spain’s public health system.
The case began in March 2022 when No es Sano, through Salud por Derecho and OCU, requested from the Ministry of Health—then led by Carolina Darias—the reimbursement price and budget impact of Zolgensma. After the Ministry refused to provide this information, the campaign turned to the Council for Transparency, which ruled in its favor. However, the Ministry of Health and Novartis challenged the decision before the National Court, which has now sided with them and blocked access to the data.
In its decision, the Seventh Section of the National Court held that disclosing the final negotiated price would reveal sensitive information about Novartis’s cost structure and profit margins, thereby harming its commercial interests. The Court also maintained that the confidentiality prescribed by the Spanish Medicines Act must be preserved in all circumstances, without exception.
For Salud por Derecho and OCU, however, this interpretation contradicts the Supreme Court, which has repeatedly affirmed that confidentiality must be weighed against the public interest and cannot be applied automatically. Furthermore, they question whether disclosing the reimbursed price could truly allow for the reconstruction of a company’s internal costs, given that the price typically reflects monopolistic profit-maximizing strategies rather than a fair return on R&D investment. The organizations stress that the purchase of publicly funded medicines constitutes public expenditure and should therefore be subject to accountability and civic oversight—cornerstones of transparent and good governance. Maintaining confidentiality, as the ruling advocates, does not strengthen the healthcare system, but rather protects the interests of the pharmaceutical industry alone.
The decision adds to a series of recent rulings in which the National Court overturned favorable judgments to Fundación Civio concerning the prices of Luxturna and Zolgensma. In those cases, the Court also sided with the Ministry of Health and pharmaceutical companies, indicating a departure from earlier positions taken by the Council for Transparency and other lower courts, which had prioritized public interest and financial accountability in the use of public funds.
Opacity does not guarantee better prices
The pharmaceutical industry justifies price confidentiality on the grounds that it enables countries to negotiate better deals and ensures lower prices for lower-income countries. However, numerous studies have shown the opposite: lack of transparency benefits pharmaceutical companies while harming public health systems.
Comparative studies across Europe and specific case analyses have revealed that secrecy results in higher prices in lower-income countries. For example, cystic fibrosis medications like Orkambi and Kaftrio have been more expensive in some lower-income European countries, as recently reported by the Investigate Europe network. Another example is Pfizer’s pneumococcal vaccine, which has cost more in Tunisia and Morocco than in France. South Africa paid twice as much as EU countries for the AstraZeneca COVID-19 vaccine. Even the United States has been documented to pay less than UNICEF for mpox vaccines.
Confidentiality benefits pharmaceutical companies by preserving their negotiating leverage and maximizing profits, while limiting the information available to governments and obstructing public accountability.
No es Sano will appeal to the Supreme Court
The plaintiff organizations expressed deep disappointment with the decision. “It is a sad day for transparency. This ruling reinforces opacity in the negotiation of publicly funded medicines,” said Vanessa López, Executive Director of Salud por Derecho. For Ileana Izverniceanu, Director of Communications and Institutional Relations at OCU, “this decision sets a very negative precedent on information of high public interest, which affects the sustainability of the healthcare system.” Both organizations have announced their intention to file a cassation appeal before the Supreme Court.
Ruling available at this link.
Picture: jcomp/Freepik
