Chilling CMA enforcement or deterring meritorious appeals? The UKSC’s judgment in CMA v. Flynn Pharma & Pfizer

16.11.2022

  1. Introduction

The judgment of the UK Supreme Court (UKSC) in Competition and Markets Authority v. Flynn Pharma and Pfizer is a relatively rare example of the UK’s highest court giving detailed consideration to the recoverability of costs.1 The need for the case to be considered at the highest appellate level stemmed in part from the fact that the dispute was not between two private parties, but rather involved a public body carrying out its statutory duties in the public interest. The body in question was the Competition and Markets Authority (CMA), responsible for competition law enforcement in the UK, and the issue in dispute was whether Pfizer and Flynn should be able to recover the costs of their successful appeal against a CMA infringement decision.

However, the case had a broader significance, both for other parties who may be involved in competition law cases in the future, and for matters involving other regulators. It was therefore unsurprising that there were interventions from a number of third parties, including separate interventions by the Office of Communications (Ofcom) and the Solicitors Regulation Authority (SRA), both in support of the CMA, and a joint intervention by the Association of the British Pharmaceutical Industry (ABPI) and the British Generic Manufacturers Association (BGMA), in support of Pfizer and Flynn. The UKSC’s judgment is also significant in the context of potential future reforms to the UK competition law regime, particularly in relation to the routes and standard of appeal for infringements of the Chapter I and II prohibitions under the Competition Act 1998.

  1. Background

The case goes back to a competition law probe started by the Office of Fair Trading (the CMA’s predecessor2) in May 2013. After a three-and-a-half year initial investigation, the CMA issued an infringement decision in December 2016, finding that Pfizer and Flynn had abused a dominant position by charging excessive prices for the epilepsy drug Phenytoin, contrary to Article 102 TFEU and Chapter II of the Competition Act 1998.3 The CMA imposed fines totalling almost £90 million on Pfizer and Flynn, which both appealed the CMA’s decision to the Competition Appeal Tribunal (CAT).

The CAT handed down its judgment on Pfizer and Flynn’s appeals of the CMA’s decision on 7 June 2018, setting aside the CMA’s findings on abuse and remitting that part of the case to the CMA for further consideration.4 In a subsequent judgment of 29 March 2019, the CAT considered the question of costs.5 In line with its standard approach to costs on appeal from CMA decisions, it applied rule 104 of the CAT Rules 2015, which provides that the CAT ‘may at its discretion […] make any order it thinks fit in relation to the payment of costs’.6 Rule 104 lists a number of factors that the CAT may take into account when considering costs, but does not set any particular starting point. Despite the position of the CMA that it should not have to pay Pfizer’s and Flynn’s costs on any issue, the CAT took an issues-based approach, awarding Pfizer and Flynn a proportion of their respective costs on the issue of abuse, and the CMA its costs in relation to market definition and dominance (on which the CAT had upheld the CMA decision).7 As the issue of abuse occupied a more significant part of the parties’ arguments and the hearing, this meant that the CMA was obliged to make net payments to each of Pfizer and Flynn.

The CMA appealed the CAT Costs Judgment to the Court of Appeal (CoA). Relying on a line of cases starting with Bradford Metropolitan District Council v. Booth,8 the CMA argued that the correct starting point when considering whether to award costs against a public body which has been unsuccessful in bringing or defending proceedings is that no order for costs should be made. Particular emphasis was placed upon BT v. Ofcom, in which the CoA reversed the usual position that costs should ‘follow the event’ in appeals against Ofcom regulatory decisions.9 The CMA submitted that BT v. Ofcom required the CAT to reconsider its approach of awarding costs against a public authority that was defending a decision in the public interest. As the CMA saw it, a competition infringement case was no different from a case in which Ofcom was performing its regulatory functions in the manner considered by the CoA in BT v. Ofcom.

The CoA ruled on the CMA’s appeal against the CAT Costs Judgment in a judgment of 10 May 2020.10 The CoA, with Lewison LJ giving the leading judgment, overturned the CAT’s decision, holding that the CAT had not given sufficient weight to the position of the CMA as a public authority carrying out its functions in the public interest.11 The CoA identified in the Booth line of cases a general legal principle that, where there is no default position expressed in the wording of the power to award costs, the starting point is that no order for costs should be made against a public body which has brought or defended proceedings acting in its regulatory capacity. In the CoA’s view, that starting point may be departed from if there is good reason, such as unreasonable conduct by the public body, but no such factor was present in this case. The CoA relied heavily on BT v. Ofcom, concluding that ‘this court has comprehensively rejected the proposition that the starting point, even in a merits or judicial review appeal in the CAT, is that costs follow the event’.12

In line with the indication of Arnold LJ in his concurring judgment that the issue of recoverability of costs involved important policy considerations, potentially meriting the involvement of the Law Commission,13 the UKSC granted Pfizer and Flynn permission to appeal the CoA Costs Judgment. The appeal was heard by the UKSC on 22 and 23 February 2022. In its judgment of 25 May 2022, the UKSC unanimously allowed the appeals of Pfizer and Flynn and reinstated the CAT’s costs ruling.

  1. The UKSC’s reasoning

The UKSC judgment comprised a single opinion from Lady Rose, with whom the other members of the Court agreed. Contrary to the CoA, she held that there is no general principle that all public bodies should enjoy a protected costs position when they lose a case. Instead, the principle supported by the Booth line of cases is that an important factor to consider when determining costs awards (which had not been properly recognized by the CMA) is whether there will be a ‘chilling effect’ on the public body’s conduct if costs orders are routinely made against it when it is unsuccessful. It cannot be assumed there is a risk of a chilling effect merely because the respondent is a public body – it will depend on the circumstances of the body in question and the nature of the decision it is defending. In Lady Rose’s view, the assessment of whether there is a realistic prospect of a chilling effect is best made by the court or tribunal in question (in this case the CAT), subject to the supervisory jurisdiction of the appellate courts.14

Having rejected the CMA’s argument that the existing case law mandated the adoption of a ‘no order as to costs’ starting point where the unsuccessful respondent is a public body, Lady Rose went on to examine the CAT’s approach to costs awards in appeals under the Competition Act 1998.15 Lady Rose observed that the CMA and Ofcom have previously sought to resist adverse costs orders in CAT appeals by suggesting that a fear of having to pay successful appellants’ costs might deter them from making decisions in the public interest and that, as a result, the CAT has therefore considered ‘chilling effect’ arguments on several occasions.16 In some cases the CAT had declined to make adverse costs orders against Ofcom when it had lost an appeal, but it did not necessarily follow, in her view, that appeals against CMA decisions were analogous.17 Unlike Ofcom, the CMA does not have a narrow regulated community; it can pursue potential infringements of the competition rules in any sector of the economy.18 Although Lady Rose did not elaborate on this point, she referred to the CAT’s judgment in BT v. DGT (RBS Backhaul),19 in which the CAT observed that companies in a regulated sector may regard the costs of appealing against regulatory decisions as a cost of doing business. This is an important distinction: such companies have a heightened awareness of the existence of the regulations, usually employ a team whose mission is to comply with the relevant rules and may have had an opportunity to provide input into the exact way in which the rules are framed. By contrast, the general competition rules may apply to any size of company in any sector of the economy and in relation to any type of conduct. While the principles are reasonably well established, their application in a given factual scenario is not always easy to predict.

Lady Rose also noted that by the time the CAT’s procedural rules were revised in 2015, the CAT had a well-established practice of adopting a ‘costs follow the event’ starting point in Competition Act 1998 appeals and had considered ‘chilling effects’ arguments in a range of different types of proceedings.20

Lady Rose held that the CAT was correct to distinguish the decisions taken by the public bodies in the Booth line of cases from those taken by the CMA under the Competition Act 1998.21 In particular, the level of decision-making activity of local authorities, the police and professional disciplinary bodies such as the SRA was ‘of an entirely different order from that of the CMA’. 22 Further, given that the CMA can effectively set off any adverse costs orders against the income it receives from fines for competition law infringements, there is no realistic prospect (at least on its current funding arrangements with HM Treasury) of its enforcement activity being ‘chilled’ by the risk of adverse costs orders.23 In her view, the CMA is also incentivized to investigate and sanction infringements by large companies, even though they may be more likely to appeal, as the level of penalty is linked to the company’s turnover. Citing the recently opened investigations into Google and Apple, Lady Rose observed that the CAT’s ‘costs follow the event’ starting point ‘does not appear so far to have deterred the CMA from pursuing major market participants’. 24 Events since the date of the hearing of the appeals appear to reinforce this: in 2022, the CMA has opened Competition Act 1998 investigations into (among others) Amazon, Meta, Google (three cases), and a group of media companies including BT, ITV and Sky.

Significantly, Lady Rose held that there are good policy reasons to adopt a starting point of costs follow the event. She referred with approval25 to the CAT cost ruling in Ping v. CMA,26which stated that the right of appeal conferred on an addressee of an infringement decision is ‘an essential part of the system by which competition authorities, in return for receiving extensive enforcement powers, are held to account by the courts’. She also considered judicial review cases in the High Court to be relevant by analogy;27 in those cases the risk of an adverse costs order has been regarded as beneficial because it will ‘encourage better decision-making within Government, a more realistic appraisal by the respondent Department of the merits of defending any particular application and the efficient and proportionate conduct of proceedings’.28

Lady Rose also acknowledged a point emphasized by the ABPI and the BGMA in their written intervention: that addressees of an infringement decision will have incurred substantial costs in the investigation stage before the adoption of the decision, which are not recoverable from the CMA even if the decision is ultimately set aside. 29 Similarly, it is not possible to recover investigation-stage costs where the CMA closes an investigation without reaching an infringement finding that is susceptible to appeal. There have been recent examples of such cases, including a ‘No Grounds for Action’ decision against Merck Sharp & Dohme following a three and a half year investigation,30 and the closure of a case against a number of companies in the pharmaceutical sector on grounds of administrative priority after a four year investigation.31 In both cases, the closures followed a full investigation including the issuing of a Statement of Objections.

Lady Rose concluded that it is appropriate for the CMA to be subjected to the discipline of having to pay a successful appellant’s costs where the CMA takes an infringement decision and the CAT ultimately decides that the CMA’s actions were not well-founded.32

Lady Rose went on to note that the factors considered in Booth, to justify no costs award being made against a public authority, can be accommodated by a costs award even if the principle that ‘costs follow the event’ is used as the starting point in considering an award of costs.33 Reviewing the CAT’s costs decisions, she noted with approval the range of ways in which the CAT tailors the costs award in any particular case to account for factors pulling in different directions, including (for example) the practice of making issues-based costs awards, in which a significant deduction is made from the winning party’s costs to take account of issues decided in favour of the losing party or which were not dealt with in the judgment 34 or making substantial reductions in the recoverable costs of the winning party.35 Concluding her survey of the CAT’s case law on costs, Lady Rose observed that the CAT has developed a sophisticated approach to costs awards and appreciates the need to ‘strike a balance between maintaining flexibility whilst providing predictability and between ensuring that costs awards do not undermine the effectiveness of the competition or regulatory regime whilst ensuring a just result for both parties’.36

  1. The UKSC Judgment in its wider context

The UKSC Judgment comes at a time of vigorous debate about whether competition law regimes are fit for the digital age. In the UK in particular, there have been regular calls for stronger and faster enforcement against anti-competitive conduct, and some have voiced concerns about the effectiveness of the appeals process itself. For instance, the Furman Report of March 2019 lamented that antitrust enforcement ‘can often be slow, cumbersome, and unpredictable’ and that this can be particularly problematic in fast-moving digital markets.37 It went on:

That is why we are recommending changes that would enable more use of interim measures to prevent damage to competition while a case is ongoing, and adjusting appeal standards to balance protecting parties’ interests with the need for the competition authority to have usable tools and an appropriate margin of judgement. The goal is to place less reliance on large fines and drawn-out procedures, instead enabling faster action that more directly targets and remedies the problematic behaviour.

The Furman Report suggested that the appeals process for competition cases should be ‘focused on ensuring decisions are founded on procedural regularity, avoid material errors of fact or law, and are reasonable in their exercise of judgement’; any system that allowed wider grounds for appeal risked creating ‘undue incentives to challenge decisions, in markets where a prolonged case may irreparably damage a smaller company’.38 It concluded by recommending that ‘[t]he review applied by the Competition Appeal Tribunal to antitrust cases, including interim measures, should be changed to more limited standards and grounds’.39

The recommendations of the Furman Report were echoed in a February 2019 letter from Lord Tyrie, then Chairman of the CMA, to the Secretary of State for Business, Energy and Industrial Strategy.40 In a section of his letter headed ‘Court review of CMA decisions’, Lord Tyrie argued:

[We have] a more protracted and cumbersome appeal process than was originally intended for, and by, the CAT. Parties found by the CMA to have breached competition law can exploit this – leading to a situation where […] many lawyers regard the UK as ‘the best jurisdiction in the world to defend a competition case’.41

Lord Tyrie warned that, post-Brexit, the CMA would be taking on large, complex cases previously reserved to the European Commission, including many in digital markets, and that this would ‘increase the importance of addressing concerns about the effectiveness and efficiency in the current appeal process’. He suggested that such concerns could be addressed by ‘moving away from the current “full merits” standard, either to a judicial review standard, or to a new standard of review, setting out specified grounds of permissible appeal’.42

It is questionable, however, whether there is any justification for limiting the ability of affected parties to appeal against CMA infringement decisions. As a then Chairman of the CAT, Peter Freeman KC, said in 2019:

It is an effective appeals system that provides the glue holding the whole system together and enables the system to work effectively. Weaken it or take it away and the concentration of power in the hands of the competition authorities becomes a serious concern.43

Mr Freeman’s comments reflect the intention of Parliament in introducing the Competition Act 1998, when it was emphasized that ‘access to full and independent appeal on the merits of the case is essential in ensuring that the new regime is fair and transparent’.44

Underlying the case for reform of the appeals process is a view that it takes too long and that bringing an appeal is often a ‘one-way bet’ for the appealing parties.45 However, there is evidence to suggest that the current system, involving full merits review by the CAT, is working well. Current timescales for Competition Act 1998 appeals, at around six to nine months from application to hearing, seem reasonable given the complexity of the issues typically involved. The CMA also has a strong success rate before the CAT: subject to a couple of notable exceptions, including the recent Compare The Market decision,46 very few CMA infringement decisions have in fact been overturned on appeal to date. In the case which gave rise to the Flynn and Pfizer costs appeals, the CMA has taken a new infringement decision following the CAT’s rejection of the original decision and its remittal for further consideration.47

This success rate compares favourably with jurisdictions which have a prosecutorial system (the alternative route to ensuring rigorous review of competition authority enforcement). Nor should non-appeals be overlooked. In recent years, the majority of CMA infringement decisions have not been appealed at all. The fact that a full merits review is potentially available has not prevented the CMA from successfully concluding many investigations (by way of settlement or infringement decision) without appeal.

In 2017 the standard of review in appeals against Ofcom decisions under the Communications Act 2003 was amended from a full merits review to a judicial review standard.48As the CAT noted in TalkTalk and Vodafone v. Ofcom, this change was aimed at streamlining the process of appeal from decisions of regulators.49 Nevertheless, there are strong reasons for maintaining the higher standard of review in appeals against infringement decisions taken by the CMA:

  • The CMA is responsible for deciding not just whether an infringement has occurred and what penalties should be imposed, but also which cases to pursue in the first place. The CMA is therefore particularly susceptible to confirmation bias, and the need for full independent review on appeal is particularly vital in a context where the CMA acts as investigator, prosecutor and adjudicator. In a context where the CMA is exposed to costs on appeal, this system appears to be working reasonably well, with a number of recent examples of cases being closed after some period of investigation without a finding of infringement.50 This is not a sign of weakness on the part of the CMA, but rather the indication of a healthy system of internal checks and balances, in which unmeritorious cases are dropped at an appropriate stage.
  • The CMA has extensive powers under the Competition Act 1998, including the power to impose financial penalties which are quasi-criminal in nature;51 and the Government is proposing to strengthen the CMA’s investigative and enforcement powers further still.52 CMA infringement decisions can have serious consequences over and above large fines and exposure to private damages actions: they can have a long-term impact on the way a business operates and cause significant reputational damage. In those circumstances, it is essential that the CMA’s decisions remain subject to full merits review by an independent tribunal.
  • A well-functioning appeals system is important for the proper development of UK competition law. Full merits review by the courts can be especially valuable in novel or complex cases, resulting in enhanced understanding of how the competition rules apply in particular situations. Even in cases where the CMA’s decision is ultimately upheld, detailed judicial scrutiny can help to ensure that the CMA ‘gets it right’ in future cases. In Ping v. CMA, for example, the CAT upheld the CMA’s decision that a restriction on online sales by retailers constituted a ‘by object’ infringement, but on a materially different basis from that set out in the CMA’s decision.53 The Pfizer/Flynn case has led to the CMA taking a number of further decisions in relation to excessive pricing in the pharmaceutical sector, including the remittal decision against Pfizer and Flynn. Arguably, the CMA itself has therefore benefitted from the fact that its original infringement decision was appealed to the CAT and further (by both the CMA and Flynn Pharma) to the CoA.54 A judicial review-style appeals system would be much less likely to result in such clarifications, which help businesses to comply with competition law in the future, to the benefit of consumers and the wider economy. This is particularly important in the post-Brexit period where, from 31 December 2020, the UK courts and tribunals are no longer bound by new EU case law developments and the CMA and the English courts have significant scope to diverge from pre-Brexit EU case law under section 60A of the Competition Act 1998.

In the last year or so, both the CMA and the Government appear to have recognized the force of at least some of these points. In its October 2021 response to the Government’s consultation Reforming Competition and Consumer Policy (Competition Consultation), the CMA stated:

[…] it [is] axiomatic that there should be a robust system for appeals of [the CMA’s] decisions. Checks and balances are an essential part of the administrative system for the enforcement of competition law. The CMA should have to account for its decisions before an impartial tribunal and the rights of defence of parties need to be maintained. The CMA also acknowledges that there is widespread support for and confidence in the ‘full merits’ standard of review among those businesses and advisers who come into contact with the [Competition Act 1998] regime.55

The Government’s April 2022 response to the Competition Consultation similarly acknowledged that rights of appeal against CMA infringement decisions ‘are an integral part of the UK’s competition law system’.56 The Government noted that the majority of consultation respondents were in favour of maintaining the status quo, arguing that merits-based appeals were necessary as a matter of fairness and helped to ensure that decisions were predictable and high-quality; and that moving to an alternative standard of review was unlikely to achieve significant efficiencies.57 The Government’s response concluded:

The appeal system has significant impacts on the operation of the enforcement system as a whole. It does not simply impact on the length of appeals themselves, but also how investigations are conducted from start to finish. […] [G]overnment considers that setting the parameters in which appeals are heard involves a range of factors, requiring careful consideration. Overall, Government is not minded to change the standard by which the Tribunal determines appeals against infringement decisions at this time.58

Whether the Government seeks to revisit this issue in the future remains to be seen. In the authors’ view, any watering down of the current checks and balances would risk providing inadequate legal protection to parties under investigation, who can be subject to substantial fines and whose individual directors may also be the subject of director disqualification proceedings using CMA infringement decisions as a starting point. As indicated above, the present system also facilitates valuable development of the law, which assists the CMA as much as private parties.

  1. Conclusion

In deciding whether to appeal against CMA infringement decisions, addressees need to consider not just the merits but also the risks of where costs liabilities may fall. Costs awards are often crucial in maintaining the financial viability of appeals, particularly for smaller companies with more limited financial resources. By endorsing ‘costs follow the event’ in Competition Act 1998 cases, the UKSC’s judgment in CMA v. Flynn Pharma and Pfizer will help to ensure that meritorious appeals are not deterred.

From a public policy perspective, the UKSC recognized that a careful balancing act needs to be carried out between ensuring that costs awards do not undermine the effectiveness of the competition regime, on the one hand, and ensuring a just result for both parties, on the other. There is of course a public interest in encouraging regulators to investigate and take decisions without undue pressure, but this should not come at the expense of effective access to justice.

The UKSC’s emphasis on the importance of holding public bodies to account is particularly valuable at a time when many are calling for swifter and tougher enforcement – and consequently reduced judicial scrutiny – in competition cases. Given the serious implications of being found to have breached the competition rules, the ability to challenge such decisions on the merits before an independent tribunal is a crucial protection that should be vigorously defended. Many of the CMA’s cases that are appealed to the CAT raise complex issues of fact, law and economics; a good number involve novel theories of harm and seek to apply existing case law in untested areas. Thorough judicial scrutiny is a necessary counterbalance to the CMA’s wide-ranging investigative and enforcement powers.

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[1]               Competition and Markets Authority (Respondent) v. Flynn Pharma Ltd, Pfizer Inc and others (Appellants) [2022] UKSC 14 (UKSC Judgment).

[2]               The CMA came into existence in October 2013 and the OFT’s competition law functions were transferred to the CMA on 1 April 2014.

[3]               CMA Case CE/9742-13 Unfair pricing in respect of the supply of phenytoin sodium capsules in the UK (7 December 2016).

[4]               Flynn Pharma Ltd, Pfizer Inc and others v. CMA [2018] CAT 11.

[5]               Flynn Pharma Ltd, Pfizer Inc and others v. CMA [2019] CAT 9 (CAT Costs Judgment).

[6]               The Competition Appeal Tribunal Rules 2015, SI 2015/1648, rule 104(2).

[7]               CAT Costs Judgment (fn 5), para 64.

[8]               Bradford Metropolitan District Council v. Booth [2000] 164 JP 485. Other relevant judgments in this line of cases are: Baxendale-Walker v. Law Society [2007] EWCA Civ 233; [2008] 1 WLR 426, R (Perinpanathan) v. City of Westminster Magistrates’ Court [2010] EWCA Civ 40; [2010] 1 WLR 1508 and British Telecommunications plc v. Ofcom [2018] EWCA Civ 2542; [2019] Bus LR 592 (‘BT v. Ofcom (Business Connectivity)’).

[9]               BT v. Ofcom (Business Connectivity) (fn 8).

[10]             Competition and Markets Authority v. Flynn Pharma Limited, Pfizer Inc and others [2020] EWCA Civ 617 (CoA Costs Judgment). For discussion, see S. Lawrance and A. Brookes, ‘The mysterious case of the successful appeal and the missing costs award: Competition and Markets Authority v. Flynn Pharma Limited’ (2020) 19 Comp Law 151‒161.

[11]             CoA Costs Judgment (fn 10), para 91.

[12]             CoA Costs Judgment (fn 10), para 75.

[13]             CoA Costs Judgment (fn 10), para 110.

[14]             UKSC Judgment (fn 1), paras 97‒98.

[15]             UKSC Judgment (fn 1), para 105 et seq.

[16]             UKSC Judgment (fn 1), paras 106‒111.

[17]             UKSC Judgment (fn 1), paras 112‒114.

[18]             UKSC Judgment (fn 1), para 115.

[19]             British Telecommunications Plc v. Director General of Telecommunications (RBS Backhaul) [2005] CAT 8, para 60. See also UKSC Judgment (fn 1), paras 115‒116: in regulatory appeals, both Ofcom and appellant companies may limit (or the CAT may limit) their recoverable costs to external legal costs only.

[20]             UKSC Judgment (fn 1), paras 118‒120.

[21]             UKSC Judgment (fn 1), paras 130‒134.

[22]             UKSC Judgment (fn 1), para 121. The UKSC noted that the CMA takes a limited number of decisions each year under the Competition Act 1998; in the financial year 2020 to 2021, for example, the CMA issued just eight infringement decisions: ibid.

[23]             UKSC Judgment (fn 1), paras 123‒125.

[24]             UKSC Judgment (fn 1), para 126.

[25]             UKSC Judgment (fn 1), para 130.

[26]             Ping Europe Limited v. CMA (Ruling: Costs and Interest on Penalty) [2019] CAT 6, para 46.

[27]             UKSC Judgment (fn 1), paras 132‒134.

[28]             UKSC Judgment (fn 1), para 133.

[29]             UKSC Judgment (fn 1), para 135.

[30]             CMA Case 50236 Remicade, No Grounds for Action Decision (14 March 2019). The investigation was opened on 1 December 2015.

[31]             CMA Case 50511-1 Pharmaceutical drugs: suspected anti-competitive agreements, opened on 10 October 2017 and closed on 8 October 2021. Bristows LLP acted for the Morningside group of companies in this investigation.

[32]             UKSC Judgment (fn 1), para 135.

[33]             UKSC Judgment (fn 1), paras 136‒153.

[34]             UKSC Judgment (fn 1), paras 140‒141.

[35]             UKSC Judgment (fn 1), paras 142‒147. Lady Rose noted that the CAT had made an issues-based order in the present case: at para 148.

[36]             UKSC Judgment (fn 1), para 153.

[37]             Unlocking digital competition: Report of the Digital Competition Expert Panel (13 March 2019) (Furman Report), available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/785547/unlocking_digital_competition_furman_review_web.pdf (accessed 14 November 2022), p. 6.

[38]             Furman Report (fn 37), para 3.136.

[39]             Furman Report (fn 37), recommended action 13, p. 107.

[40]             Letter from The Rt Hon Lord Tyrie to the Secretary of State for Business, Energy and Industrial Strategy (21 February 2019) (Tyrie Letter), available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/781151/Letter_from_Andrew_Tyrie_to_the_Secretary_of_State_BEIS.pdf (accessed 14 November 2022).

[41]             Tyrie Letter (fn 40), p. 35.

[42]             Tyrie Letter (fn 40), p. 36.

[43]             P. Freeman, Appeals in Competition Infringement cases, Keynote Speech to the Concurrences Conference – Innovation Economics for Antitrust Lawyers 2019 (1 March 2019), available at: https://www.regulation.org.uk/library/2019-Peter_Freeman-Appeals_in_Competition_Infringement_Cases.pdf (accessed 14 November 2022).

[44]             Statement of Mr Ian McCartney, MP, during the third reading of the Competition Bill before the House of Commons on 8 July 1998. A number of similar statements were made during other readings.

[45]             Tyrie Letter (fn 40), p. 39.

[46]             CMA Case 50505 Price comparison website: use of most favoured nation clauses (9 February 2021); on appeal to the CAT, BGL (Holdings) Limited and others v. CMA [2022] CAT 36.

[47]             CMA Case C3/9742-13 Phenytoin sodium capsules: suspected unfair pricing (21 July 2022). Pfizer and Flynn Pharma have each appealed against this decision: Pfizer Inc. and Pfizer Limited v. CMA (Case 1524/1/12/22) and Flynn Pharma Limited and Flynn Pharma (Holdings) Limited v. CMA (Case 1525/1/12/22).

[48]             Digital Economy Act 2017 s. 87.

[49]             TalkTalk Telecom Group Plc and Vodafone Limited v. Ofcom [2020] CAT 8, para 121.

[50]             For example, Case 50511-1 Pharmaceutical drugs: suspected anti-competitive agreements (Nitrofurantoin). The authors acted for one of the groups of companies involved in this investigation (Morningside Pharmaceuticals Limited and group companies).

[51]             A. Menarini Diagnostics S.R.L. v. Italy (no. 43509/08), judgment of the European Court of Human Rights of 27 September 2011. See also Opinion of Advocate General Sharpston in Case C-272/09 P KME Germany AG v. Commission EU:C:2011:63, paras 41‒83.

[52]             See Reforming Competition and Consumer Policy, Government Response to Consultation (CP 656, April 2022), available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1069663/reforming-competition-consumer-response-cp656-web-accessible.pdf (Government Consultation Response) (accessed 14 November 2022).

[53]             Ping Europe Limited v. Competition and Markets Authority [2018] CAT 13. The CAT’s judgment, dismissing Ping’s appeal, was upheld by the Court of Appeal in Ping Europe Limited v. Competition and Markets Authority [2020] EWCA Civ 13.

[54]             For example, in Case 50395 Excessive and unfair pricing with respect to the supply of liothyronine tablets in the UK (Liothyronine) (29 July 2021), the CMA refers multiple times to the Court of Appeal’s substantive judgment in Competition and Markets Authority v. Flynn Pharma Limited and Pfizer Inc. [2020] EWCA Civ 339. This decision is currently on appeal to the CAT: Hg Capital LLP, Cinven (LUxco 1) s.a.r.l and Mercury Pharmaceuticals Limited v. Competition and Markets Authority (Cases 1419, 1421 and 1422/1/12/21).

[55]             CMA response to the Government’s consultation Reforming Competition and Consumer Policy – Driving growth and delivering competitive markets that work for consumers (CMA149con, 4 October 2021), available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1022615/Reforming_Competition_and_Consumer_Policy_publication_4.10.21.pdf (accessed 14 November 2022), para 2.84.

[56]             Government Consultation Response (fn 52), para 1.161.

[57]             Government Consultation Response (fn 52), para 1.164.

[58]             Government Consultation Response (fn 52), para 1.165.

Edwin Bond

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Sophie Lawrance

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