The Court of Appeal (CoA) has upheld the Competition and Markets Authority’s (CMA) finding of cartel infringement in a significant ruling that addresses an illegal market-sharing agreement in the supply of a crucial medicine. The decision overturns a previous ruling by the Competition Appeal Tribunal (CAT) that had set aside the CMA’s original finding on procedural grounds.
In July 2021, the CMA concluded that pharmaceutical companies Auden Mckenzie and Actavis UK had engaged in anti-competitive practices by charging excessive prices for hydrocortisone tablets and paying a competitor, AMCo (now Advanz), to remain out of the market. This practice led to a dramatic increase in NHS expenditure on the drug, soaring from approximately £500,000 annually to over £80 million. The CMA imposed over £260 million in penalties to address the seriousness of these practices and their impact on the NHS.
The CAT initially upheld the CMA’s findings in September 2023 but later ruled in March 2024 that the CMA had not adequately cross-examined John Beighton, the former CEO of Advanz, on the market-sharing agreement. The tribunal’s subsequent judgment found procedural flaws in the CMA’s handling of the case, prompting an appeal by the CMA.
Today, the Court of Appeal overturned the CAT’s ruling, affirming the CMA’s original findings and its handling of the case. The CoA deemed the CMA’s cross-examination of Beighton as appropriate and upheld the CMA’s penalties. The court criticised the CAT for making new findings and conducting an additional examination that led to the reversal of the original decision, calling the approach “inappropriate” and “unjust.”
Sarah Cardell, Chief Executive of the CMA, welcomed the ruling, stating, “The CMA’s imposition of significant penalties was intended to rectify the market-sharing agreement that deprived the NHS of potential savings through competitive pricing. We are pleased that the Court of Appeal recognised the clarity and fairness of our case.”
The case involved several pharmaceutical firms, including Auden Mckenzie, which later became Actavis UK (now Accord-UK), and AMCo (Advanz Pharma). The CMA’s investigation revealed that Auden/Actavis UK, in a bid to protect its monopoly, made substantial payments to competitors to prevent their market entry with hydrocortisone tablets between 2008 and 2018. Despite the CAT’s earlier judgment confirming the excessive pricing and market-sharing agreement, the tribunal had expressed concerns over procedural fairness, leading to its initial reversal of the CMA’s decision.
The CoA’s ruling also reinstates the CAT’s earlier findings that the CMA’s decision on the existence and nature of the 10mg hydrocortisone agreement was correct. However, the tribunal’s additional findings on dishonesty and other matters have been overturned.
This case underscores the importance of rigorous competition enforcement and adherence to proper procedures in ensuring fair market practices. The ruling marks a significant step in maintaining regulatory oversight and protecting public interests in the pharmaceutical sector.