RBB publications

Brief 56: Pfizer/Flynn vs the CMA: Misdiagnosis of excessive pricing 23.07.18

On 07 June 2018, the UK Competition Appeals Tribunal (‘CAT’) set aside the Competition and Markets Authority (‘CMA’) Decision regarding the alleged excessive pricing of phenytoin sodium (an anti-epileptic drug) by two pharmaceutical companies – Pfizer and Flynn.

While the CAT supported the CMA’s findings in relation to market definition and dominance, it was critical of the CMA’s assessment of the alleged abusive conduct. Specifically, the CAT found that the CMA “did not correctly apply the legal test for finding that 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 other, comparable, products, in particular of the phenytoin sodium tablet”.

In short, the CAT found that the CMA had failed to conduct a thorough economic assessment of the circumstances in which prices can be held to be excessive and identified a range of factors that need to be considered in order to robustly establish a finding of excessive pricing. The CAT Judgment therefore serves as a welcome reminder of the inherent difficulties that arise in determining whether or not a given price level can be meaningfully determined to be excessive and, perhaps more importantly, that competition authorities should not ignore crucial economic evidence in that assessment.

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The Joint OFT / CC Commentary on Retail Mergers: FAQs 14.11.11

RBB Economics, The Joint OFT / CC Commentary on Retail Mergers: FAQs, November 2011.

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Comments on proposed changes to EC Commission Guidelines on Vertical Restraints 14.09.09

RBB Economics, Comments on proposed changes to EC Commission Guidelines on Vertical Restraints, September 2009.

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OFT/CC Joint Merger Assessment Guidelines: Response to Invitation to Comment 14.08.09

RBB Economics, OFT/CC Joint Merger Assessment Guidelines: Response to Invitation to Comment, August 2009.

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The Competitive Effects of Buyer Groups, Economic Discussion Paper, A Report prepared for the Office of Fair Trading 14.01.07

The Competitive Effects of Buyer Groups, Economic Discussion Paper, A Report prepared for the Office of Fair Trading by RBB Economics, Adrian Majumdar, Leslie Neubecker, Ugur Akgun, Markus Baldauf, January 2007.

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The Response of RBB Economics to the DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses 14.03.06

RBB Economics, The Response of RBB Economics to the DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses, March 2006.

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