The Court of Appeal’s Judgment in Phenytoin

On 10 March 2020, the Court of Appeal handed down its judgment on an appeal relating to a fine of nearly £90 million imposed in 2016 by the Competition and Markets Authority (CMA) on Pfizer Inc. (“Pfizer”) and Flynn Pharma Ltd. (“Flynn”) for excessive pricing of an anti-epilepsy medicine.

The judgment is a landmark ruling on the economic tests to be applied when considering whether prices charged by a dominant undertaking amount to an abuse of a dominant position, clarifying the interpretation of the tests established in the seminal United Brands case.

Given the opportunities presented by the novel coronavirus (COVID-19) pandemic for excessive pricing of products in high demand and short supply, this clarification is of immediate relevance to both competition authorities and dominant undertakings.