CAT sets aside CMA excessive pricing decision (Flynn/Pfizer)
On 7 June 2018, the UK Competition Appeal Tribunal (“CAT”) set aside the UK Competition and Markets Authority (“CMA”)’s finding that that Flynn and Pfizer had committed an abuse of dominant position by charging excessive prices for an anti-epileptic drug (phenytoin sodium capsules). Importantly, the CAT decided that the CMA erred in its reliance on the “Cost Plus” approach to determine whether prices were excessive and misapplied the United Brands test. In particular, the CAT found that the CMA “did not appropriately consider what was the right economic value of the Pfizer-Flynn Capsules” and “did not take sufficient account of the situation of other, comparable products”.
CRA Vice President Raphaël De Coninck acted as Flynn’s economic expert. He submitted written economic evidence to the Tribunal, and was cross-examined during the appeal proceedings in front of the CAT. The CRA team advising Flynn also included Elina Koustoumpardi, Mikaël Hervé and Roman Fischer.
The judgment is available on the CAT website and can be accessed here.