Rethinking the Legal Test for Excessive Pricing

The legal treatment of excessive pricing in the pharmaceutical sector has been a topic of intense debate. This article examines the UK Competition and Market Authority (CMA) approach in the Pfizer/Flynn case and the subsequent appeal. It explores the implications of the Courts’ findings on the CMA’s latest investigations. The article criticizes the UK Courts for imposing unnecessarily high burden on the CMA, which will likely impose additional burdens on future investigators. The analysis also suggests that the cost-plus test conducted by the CMA is a very advanced methodology that can provide different benchmarks not only for assessing the excessiveness but also for assessing the unfairness under the 2-fold United Brands test.