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

The European Commission has historically proved relatively reluctant to intervene in the area of excessive pricing. This is probably partly because the test outlined in United Brands v Commission remains unclear in various respects. 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 Brands test. While the decision places a useful light on the intrinsic problems with the test, it is argued that in certain respects the Court of Appeal's reading is questionable and that significant uncertainties remain. In particular, the questions of what qualifies a price as being “unfair in itself” and how the economic value of a product should be assessed remain problematic. Until these issues are addressed more thoroughly by the EU courts, the enforcement of unfair excessive pricing will continue to prove problematic.