Judgment

Neutral Citation Number

[2021] CAT 9

Published

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Summary

Supplementary judgment of the Tribunal in relation to five appeals brought by six entities: GlaxoSmithKline PLC (“GSK”), Generics (UK) Ltd (“GUK”), Xellia Pharmaceuticals ApS and Alpharma LLC (“Xellia/ALLC”), Actavis UK Ltd (“Actavis”) and Merck KGaA (“Merck”) (together “the Appellants”).

The appeals were brought against a decision of the Competition and Markets Authority (“CMA”) issued on 12 February 2016 (“the Decision”). In the Decision, the CMA determined that: GSK had infringed both the Chapter I prohibition and Chapter II prohibition under the Competition Act 1998; the other appellants had all infringed the Chapter I prohibition; and GSK, GUK and Merck had also infringed Article 101 of the Treaty on the Functioning of the European Union (“TFEU”).

The five appeals were heard together and a judgment was handed down on 8 March 2018 ([2018] CAT 4) (“the CAT Judgment”). By the CAT Judgment, certain grounds in the appeals were dismissed but in respect of others the Tribunal decided to make a reference to the Court of Justice of the European Union (“CJEU”) under Article 267 TFEU. The Tribunal also decided that as regards the grounds of the appeals challenging the penalties, it would be inappropriate to determine those grounds until after the judgment of the CJEU. The CJEU issued its judgment on 30 January 2020: Case C-307/18 Generics (UK) Ltd v Competition and Markets Authority, EU:C:2020:52.

For the reasons set out in the supplementary judgment, the Tribunal unanimously:  

  1. Dismissed all of the outstanding grounds against liability in each of the five appeals;
  2. Allowed GSK’s appeal as regards the imposition of a penalty for breach of the Chapter II prohibition;
  3. Allowed all of the appeals against penalty for breach of the Chapter I prohibition (and of Article 101(1) TFEU as regards the GUK Agreement) and substituted the penalties imposed by the CMA with the following penalties:

          (a) GSK: £22,200,602

          (b) GUK-Merck: £3,894,191:

               (i) of which Merck is liable for £3,894,191; and

               (ii) GUK is jointly and severally liable for £2,049,574

          (c) Alpharma: £1,028,574:

               (i) Actavis is jointly and severally liable for £1,028,574;

               (ii) Xellia is jointly and severally liable for £1,028,574; and

               (iii) Alpharma is jointly and severally liable for £1,028,574.

This is an unofficial summary prepared by the Registry of the Competition Appeal Tribunal.