Competition commission reassesses pharmacies price-fixing after court setback

The Namibian Competition Commission (NaCC) is considering its next course of action after the Supreme Court ruled that its investigation into alleged price-fixing in the pharmaceutical sector was conducted unlawfully.

The apex court dismissed NaCC’s appeal against a High Court judgement, finding that the commission acted outside its legal mandate by allowing its secretary to initiate and run the probe into a 50% medicine mark-up applied by pharmacies linked to the Pharmaceutical Association of Namibia (PAN).

The ruling has effectively halted the existing investigation, forcing the commission to reassess how it proceeds with the case.

NaCC spokesperson Dina //Gowases says the matter has been referred back to the commission, which is now reviewing its options in line with the Competition Act.

“The commission respects the ruling of the Supreme Court of Namibia. We are currently reviewing the appropriate action to be taken regarding the allegations of price-fixing by PAN and its affiliates, and will pronounce ourselves once this process is concluded,” she says.

The court clarified that investigative powers cannot be delegated in the manner previously applied by the NaCC, emphasising that statutory functions must be exercised within the framework set out in the Competition Act.

It further ruled that investigations are meant to gather information to inform potential court action, rather than determine culpability.

The case originates from a 2017 query by medical aid administrator Prosperity Health on whether a uniform 50% mark-up on medicines constituted price-fixing. In 2018, the commission’s secretary issued a notice launching the investigation, a move later challenged in court by PAN and two pharmacies.

The NaCC had argued that the delegation was necessary for efficiency, but the Supreme Court rejected this position, stating that internal administrative arrangements cannot override statutory requirements.

The allegations affect more than 200 pharmacies and relate to pricing practices spanning over 15 years under PAN’s mark-up framework. PAN represents over 80% of Namibia’s pharmacists.

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