4 ms·

Well here the issue is that Roche has been compensated as the orders are in. Roche just does not seek to fulfill them in a timely manner. Which is also a strate

by zwaps 7y ago

Well here the issue is that Roche has been compensated as the orders are in. Roche just does not seek to fulfill them in a timely manner. Which is also a strategic decision of production and inventory. Given that any production ramp up would have been a risky decision in January, the point explicitly is not that Roche can not supply the material right this instance. What's not okay is that Roche uses vendor locking in or legal lock ins (Denmark) to keep countries from running any tests. This is not a matter of ramping up production in January ex-ante. It's a thing that happened and was discussed just last week, when many EU countries literally were in a state of emergency since more than a week. In an effort to protect future, not current, profits, Roche has more or less directly contributed to the death of people. And if you think this is a strategic decisions that firms should be able to make in such a volatile situation, then you should probably not be allowed to gain these kinds of market shares in the EU. Because let's be clear. If there were a legal institution to solve this problem last week or two weeks ago, it would have been used. The only reason Roche responds now is because the EC would invoke its discretionary power, slow as it is. The only ethical decision for Roche would have been to release either the recipe or release legal lock-ins as soon as it was apparent that they could not fulfill orders in time. Roche, which is not a EU company, should be held accountable to whatever degree the law allows. And to the degree it doesn't, such laws should be created. From a EU perspective, it is doubtful whether a company that acts in this way should be allowed to do business here in this manner - in my personal opinion. And that's not just empty talk - in several countries the constitutions actually do norm that lives and welfare of people take precedence over pecuniary interests. For example, Roche would have simply have been disowned of their intellectual property by a court here in Germany if we would have had the same lock-in issue. There's ample legal precedent for that, and there are high legal boundaries for such actions. But given the setup of our constitution, these requirements are clearly met in this case.

_trampeltier 7y ago
Of course we have a special time at moment and I understand your point. But on the other hand, Roche is a just a company and companys exist to make money. I couldn't find it, but back in january there was a press release from several pharma companys who said, they will not start to work on Covid-19 because the last time with Sars etc. finally nobody paid them.
- 8note 7y ago
  It makes a strong argument that companies should not be involved with these things
- raverbashing 7y ago
  As the saying goes, in times of emergency "we can either do this nicely, or else..." Also: Trump and GM right now
- zwaps 7y ago
  Like I said, it's not about retroactively deciding they should have ramped up production in hopes of future payoffs. This is about a constitutional issue: At this moment (or rather last week), Roche was using a "legal" loophole to keep these states from testing. This is unethical, clearly, and leads to deaths. Now the question is: why is it a loophole? Is it illegal if there is no law against it? On the surface, Roche is just doing what is in its best interests. But my point was that in the EU, many systems are explicitly not set up solely as "do what you want if there is no law AGAINST it"! I made the case that this behavior (lock-ins of whatever form to keep hospitals from testing patients) is in fact not consistent with the entirety of our laws, and the only issue here is the difficulty of determining this fact in a short timeframe because constitutional / public law does not directly (however indirectly) legislate private parties. In particular, in our jurisdiction, we norm (for example in the constitution) that commerce has to fall within ethical boundaries. Sometime these norms are made concrete as laws: price gouging, for example, is illegal. For this case, no such concrete law exists. Nevertheless if this was ever brought in from of a court, the court would decide without fail that this behavior is not in accordance to the basic law of the constitution and it would in fact mandate the legislative to form a new law forbidding this behavior (where the boundaries were to be set by weighting countervailing interests of private commerce against public welfare). This is absolutely standard legal procedure. Similarly, executive bodies would eventually (see the EC) step in, and their decisions would ex-post be validated by the constitutional courts, without fail. Because one law that does exists in most countries, coming from the above constitutional consideration, is that the executive can expropriate private parties if it is in the overwhelming public interest. This is simply a law that writes down what our constitution proclaims in terms of ethical behavior. So, the only reason this loophole exist, then, is because executive bodies are slow to react, and court validation is even slower. Hence, my point was that Roche was using a loophole within our legal system to engage in unethical behavior. Whether or not this alone is illegal, and whether or not there will be sanctions, is doubtful, as public law of this kind does not directly legislate private businesses. But I would like to see laws enacted now that norm (even if it needs to be specific such as for pandemic cases) that when a private party engages in behavior that is unethical or otherwise obviously not consistent with basic principles, then they can be retroactively punished. All this is very simple: Most countries in the EU have a legal basis that unethical behavior, such as endangering lives, is not justifiable by business interests. Everyone doing business here has to be aware of this and we have to conclude that Roche was doing this despite this knowledge.

by zwaps 7y ago

_trampeltier 7y ago

Of course we have a special time at moment and I understand your point. But on the other hand, Roche is a just a company and companys exist to make money. I couldn't find it, but back in january there was a press release from several pharma companys who said, they will not start to work on Covid-19 because the last time with Sars etc. finally nobody paid them.

8note 7y ago
It makes a strong argument that companies should not be involved with these things
raverbashing 7y ago
As the saying goes, in times of emergency "we can either do this nicely, or else..." Also: Trump and GM right now
zwaps 7y ago
Like I said, it's not about retroactively deciding they should have ramped up production in hopes of future payoffs. This is about a constitutional issue: At this moment (or rather last week), Roche was using a "legal" loophole to keep these states from testing. This is unethical, clearly, and leads to deaths. Now the question is: why is it a loophole? Is it illegal if there is no law against it? On the surface, Roche is just doing what is in its best interests. But my point was that in the EU, many systems are explicitly not set up solely as "do what you want if there is no law AGAINST it"! I made the case that this behavior (lock-ins of whatever form to keep hospitals from testing patients) is in fact not consistent with the entirety of our laws, and the only issue here is the difficulty of determining this fact in a short timeframe because constitutional / public law does not directly (however indirectly) legislate private parties. In particular, in our jurisdiction, we norm (for example in the constitution) that commerce has to fall within ethical boundaries. Sometime these norms are made concrete as laws: price gouging, for example, is illegal. For this case, no such concrete law exists. Nevertheless if this was ever brought in from of a court, the court would decide without fail that this behavior is not in accordance to the basic law of the constitution and it would in fact mandate the legislative to form a new law forbidding this behavior (where the boundaries were to be set by weighting countervailing interests of private commerce against public welfare). This is absolutely standard legal procedure. Similarly, executive bodies would eventually (see the EC) step in, and their decisions would ex-post be validated by the constitutional courts, without fail. Because one law that does exists in most countries, coming from the above constitutional consideration, is that the executive can expropriate private parties if it is in the overwhelming public interest. This is simply a law that writes down what our constitution proclaims in terms of ethical behavior. So, the only reason this loophole exist, then, is because executive bodies are slow to react, and court validation is even slower. Hence, my point was that Roche was using a loophole within our legal system to engage in unethical behavior. Whether or not this alone is illegal, and whether or not there will be sanctions, is doubtful, as public law of this kind does not directly legislate private businesses. But I would like to see laws enacted now that norm (even if it needs to be specific such as for pandemic cases) that when a private party engages in behavior that is unethical or otherwise obviously not consistent with basic principles, then they can be retroactively punished. All this is very simple: Most countries in the EU have a legal basis that unethical behavior, such as endangering lives, is not justifiable by business interests. Everyone doing business here has to be aware of this and we have to conclude that Roche was doing this despite this knowledge.