Compulsory sale of medicines by private agents to the brazilian unified health system

Abstract

The shortage of essential medicines in the Brazilian Unified Health System has, among other causes, the refusal of the pharmaceutical industry to supply medicines to the Public Power, putting the lives of citizens at risk. Regarding this, public entities filed public civil actions to compel private agents to supply at fixed prices, which raises the question of the legal possibility of mitigating the precepts of free enterprise to promote the dignity of the human person, that is, whether it would be it is possible to compel a private individual to practice a certain legal business - the sale of medicines - in favor of the community. Mainly based on the weighting judgment between the two colliding principles (clash of principles), we work with the hypothesis that the dignity of the human person, the axiological vector of the Federal Constitution should prevail especially in view of the peculiarities of the pharmaceutical market, that is, that these sales are mandatory. The research technique was essentially bibliographic, based on theoretical references extracted from books, magazines and on the internet, despite the scarce bibliography, since there is no specific theoretical references found on the cogent sale of medicines to the State. We seek to deduce an implicit constitutional command that supports the proposed thesis, as it occurs in consumer legislation and antitrust, which have similar provisions, from the analysis of general concepts covered by the national doctrine, especially with regard to freedom of initiative.