Cinven v Advanz Pharma Corp & Anor

Cinven v Advanz Pharma Corp & Anor

The CAT did not err in law in upholding the CMA's finding of excessive and unfair pricing by Advanz/Cinven for liothyronine tablets. Cost Plus, benchmarked against comparables, is a valid and sufficient test for fairness under competition law. Alternative benchmarks (EIP, PEP, MFP, Portfolio Pricing) are not mandatory or dispositive. The CAT's findings on market structure, contamination, and lack of NHS acquiescence were justified. However, the CAT erred in law in removing the penalty uplift for specific deterrence for Cinven; the Guidance required consideration of the penalty's impact relative to global turnover and the need for deterrence, which the CAT failed to apply correctly. The...

Parties
Applicant/respondent: Cinven Capital Management (V) General Partner Limited; Applicant/respondent: Cinven (Luxco 1) S.Á. R. L; Applicant/respondent: Cinven Partners LLP; Applicant/respondent: Mercury Pharmaceuticals Limited; Applicant/respondent: Advanz Pharma Services (UK) Limited; Applicant/respondent: Mercury Pharma Group Limited; Applicant/respondent: Advanz Pharma Corp Limited; Respondent/applicant: Competition and Markets Authority
Jurisdiction
England and Wales
Judgment Date
05 September 2025
Procedural Posture
Appeal (competition Law) / Appeal From Competition Appeal Tribunal to Court of Appeal
Outcome
Appeal by Cinven/Advanz dismissed on all substantive grounds; CMA's appeal on penalty allowed.
Legal Topics
Abuse of Dominant Position, Excessive Pricing, Fairness Test, Cost Plus Benchmark, Market Entry Barriers, Penalties and Deterrence
Competition Law Pharmaceutical Regulation Abuse of Dominant Position Excessive Pricing Fairness Test Cost Plus Benchmark Market Entry Barriers Penalties and Deterrence

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Parties

Cinven Capital Management (V) General Partner Limited

Applicant/respondent

Cinven (Luxco 1) S.Á. R. L

Applicant/respondent

Cinven Partners LLP

Applicant/respondent

Mercury Pharmaceuticals Limited

Applicant/respondent

Advanz Pharma Services (UK) Limited

Applicant/respondent

Mercury Pharma Group Limited

Applicant/respondent

Advanz Pharma Corp Limited

Applicant/respondent

Competition and Markets Authority

Respondent/applicant

Procedural Posture

Appeal (competition Law) / Appeal From Competition Appeal Tribunal to Court of Appeal

Legal Issues

  1. 1 Whether the CAT erred in law in upholding the CMA's finding of excessive and unfair pricing by Advanz/Cinven for liothyronine tablets.
  2. 2 Whether alternative benchmarks to Cost Plus (such as Entry Incentivising Prices, Post Entry Prices, Multi-Firm Pricing, Portfolio Pricing) are mandatory or dispositive tests for fairness under competition law.
  3. 3 Whether the CAT erred in its approach to the burden and standard of proof, legal certainty, and the relevance of acquiescence by the NHS.

Ratio Decidendi

The CAT did not err in law in upholding the CMA's finding of excessive and unfair pricing by Advanz/Cinven for liothyronine tablets. Cost Plus, benchmarked against comparables, is a valid and sufficient test for fairness under competition law. Alternative benchmarks (EIP, PEP, MFP, Portfolio Pricing) are not mandatory or dispositive. The CAT's findings on market structure, contamination, and lack of NHS acquiescence were justified. However, the CAT erred in law in removing the penalty uplift for specific deterrence for Cinven; the Guidance required consideration of the penalty's impact relative to global turnover and the need for deterrence, which the CAT failed to apply correctly. The...

Court Disposition

Appeal by Cinven/Advanz dismissed on all substantive grounds; CMA's appeal on penalty allowed.

Orders

  • Permission to appeal refused on Issues I-VIII (pricing, benchmarks, acquiescence, burden of proof).
  • Permission to appeal granted and allowed on Issue IX (penalty uplift for specific deterrence).