Clifford Chance

Tribunal sets aside CMA decision against Pfizer and Flynn Pharma in landmark judgment

16 July 2018

On 7 June 2018, the UK's Competition Appeal Tribunal set aside a decision by the Competition and Markets Authority (CMA) which had found that Pfizer (and another company Flynn) had abused their dominant position by charging excessive and unfair prices for an anti-epilepsy medicine, phenytoin sodium capsules. The Tribunal set aside the penalties imposed, including the record-breaking £84.2m fine against Pfizer. It found that the CMA did not correctly apply the legal test for finding that the prices were unfair; it did not appropriately consider what was the right economic value for the product at issue; and it did not take sufficient account of the situation of the other, comparable, products, in particular the phenytoin sodium tablet. The judgment represents a significant setback to the CMA's legal strategy in cases of excessive pricing and it has confirmed that its other investigations "may now be severely delayed". However, authorities around the world continue to pursue excessive pricing investigations against pharmaceutical companies including in Denmark, Italy, South Africa and Russia.

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