On 28 June 2018, the UK Competition and Markets Authority (CMA) announced that it has applied to the Competition Appeal Tribunal (CAT) for permission to appeal against the CAT’s judgment on appeals by Pfizer and Flynn against the CMA decision fining them for abusing their dominant positions by charging unfair and excessive prices for phenytoin sodium capsules.

On 7 June 2018, the CAT handed down a judgment in which it concluded the CMA’s conclusions on abuse of dominance were in error. The Court considered that the CMA had not correctly applied the legal test for finding that prices were unfair.

The CAT concluded that the CMA’s overall findings on abuse of dominance were not well founded as a matter of law and assessment and had to be set aside. The CAT decided to remit the matter, insofar as it deals with abuse, to the CMA for further consideration. The effect of this judgment has been to delay not only the case under consideration but another two excessive pricing cases involving the pharmaceutical sector currently before the CMA.

The CAT must now decide whether to grant the CMA permission to appeal the judgment to the Court of Appeal. If the CAT refuses permission it is still open to the CMA to apply directly to the Court of Appeal.

If CMA’s appeal is allowed to proceed the regulator will be hoping that any appeal before the Court of Appeal will vindicate their approach to abuse in the context of excessive pricing cases