No opinion on this exact story, but in general there's a bit of a balance to be struck here.
Early on in this thing, there were lots of stories about companies reluctant to fully commit (e.g. to manufacturing masks, or to dropping everything else to work on a vaccine) because they did that for SARS, and then when it fizzled out felt they weren't sufficiently compensated. Had they worked on their usual business, they would have had their usual profits instead. But this year... it would have been nice if they had worked hard in February!
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.
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.
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.
Sure, I agree with the balancing act. There just shouldn't be any monetary problem going on, as testing is so cheap compared to the effects of not putting sick people on quarantine.
I'm just fustrated of the whole western thinking while Asia shows us that fighting the virus is just a logistical problem, we have all the needed technology (masks, testing, quarantine, hygiene, temperature checking everywhere).
Frustrated too, but it's not just a logistical problem, it's a political problem. We have lots of logistical wizards but had to decide to employ them them. Lots of bio-lab wizards too.
Yes, they learned that lesson, and now we are paying for the short sightedness of the politicians at that time hanging them out to dry.
The signal for a company to work hard is to award them a contract. If it's important enough to get done, then it's important enough for whatever government to put a contract in place and get the work going. When those in power require work to be done for free, it is called slavery, not volunteering.
Why "early on"? Just yesterday GM tried to price-gouge the US federal government, and restrict the number of ventilators they will produce, prompting Trump to actually use the DPA for the first time in this ordeal, something he's very reluctant to do other than as leverage in negotiations.
I said early on because in Jan/Feb some people thought it might blow over -- it wasn't 100% obvious that you would be able to sell every mask you could make. Had someone signed a contract for 6 months of full production, they would have switched, but without it, they sat. That was a situation with a lot of parallels to SARS.
Now of course things are different, nobody is thinking the way I suggested. They are playing other games, though.
But I thought Trump said there wasn't a ventilator shortage, or something along those lines. Didn't he accuse New York of asking for more than they needed?
Now, all of a sudden, ventilators are very important to Trump. Odd.
He doesn't understand exponential function, neither most of the people in the world. It's counterintuitive, as the brain is heavily biased to linear thinking. Also in western world generally math is not cool, people have a strong bias against it.
There isn't a shortage, yet. Cuomo was put on the spot today over thousands of ventilators sitting in a warehouse. He said they don't need them yet, but they "expect to" in the future. Any claims of a current shortage, therefore, are a lie.
Early on in this thing, there were lots of stories about companies reluctant to fully commit (e.g. to manufacturing masks, or to dropping everything else to work on a vaccine) because they did that for SARS, and then when it fizzled out felt they weren't sufficiently compensated. Had they worked on their usual business, they would have had their usual profits instead. But this year... it would have been nice if they had worked hard in February!