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The UK Court of Appeal imposes agency discretion in the methodology to establish the unfairness of prices, thereby increasing the burden of proof on companies to avoid a finding of excessive pricing (Flynn / Pfizer)

The UK Court of Appeal Overturns the CAT & Imposes Agency Discretion on Excessive Price Benchmark* On March 10, 2020, the England and Wales Court of Appeal (CoA) handed down a significant ruling that reintroduces agency discretion in the methodology used to establish the unfairness of prices, thereby increasing the burden of proof on companies to avoid a finding of excessive pricing. The case relates to the appeals by the U.K. Competition and Markets Authority (CMA) and Flynn Pharma Ltd. against a June 2018 Competition Appeal Tribunal’s (CAT) ruling. The 2018 ruling addressed challenges by Pfizer and Flynn against the CMA decision to fine them for abusing their dominant positions by charging unfair and excessive prices for phenytoin sodium capsules, an anti-epilepsy drug. [1]

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Authors

  • Skadden, Arps, Slate, Meagher & Flom (Brussels)
  • Skadden, Arps, Slate, Meagher & Flom (Brussels)

Quotation

Ingrid Vandenborre, Caroline Janssens, The UK Court of Appeal imposes agency discretion in the methodology to establish the unfairness of prices, thereby increasing the burden of proof on companies to avoid a finding of excessive pricing (Flynn / Pfizer), 10 March 2020, e-Competitions Preview, Art. N° 94086

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