The elusive test for unfair excessive pricing under EU law: revisiting United Brands in the light of Competition and Markets Authority v Flynn Pharma Ltd

Stirling, Grant

Abstract

The European Commission has historically proved relatively reluctant to intervene in the areaof excessive pricing. This is probably partly because the test outlined in United Brands v Commission remainsunclearin variousrespects.In a recent decision of the English Court of Appeal –Competition and Markets Authority v Flynn Pharma–the English court sought to revisit some of the problematic aspects of the United Brandstest. While the decision places a useful light on the intrinsic problems withthe test, it is argued that in certain respects the Court of Appeal’s reading is questionable and that significant uncertainties remain. In particular, the questionsof whatqualifies a price as being“unfair in itself” and how the economic value of a product should be assessed remain problematic.Until theseissuesare addressedmore thoroughly by the EU courts, the enforcement of unfair excessive pricing will continue to prove problematic. KeywordsUnfair pricing; excessive pricing; Article 102 TFEU; United Brands; Flynn Pharma.

Citation

Stirling, G. (2020). The elusive test for unfair excessive pricing under EU law: revisiting United Brands in the light of Competition and Markets Authority v Flynn Pharma Ltd. European Competition Journal, 16(2-3), 368-386. https://doi.org/10.1080/17441056.2020.1771007

• Journal Article Type: Article
• Acceptance Date: May 15, 2020
• Online Publication Date: May 28, 2020
• Publication Date: 2020
• Deposit Date: Jul 17, 2020
• Publicly Available Date: Nov 29, 2021
• Journal: European Competition Journal
• Print ISSN: 1744-1056
• Publisher: Taylor & Francis (Routledge)
• Peer Reviewed: Peer Reviewed
• Volume: 16
• Issue: 2-3
• Pages: 368-386
• DOI: https://doi.org/10.1080/17441056.2020.1771007
• Keywords: Unfair pricing; excessive pricing; Article 102 TFEU; United Brands; Flynn Pharma
• Public URL: https://hull-repository.worktribe.com/output/3543574
• Publisher URL: https://www.tandfonline.com/doi/full/10.1080/17441056.2020.1771007