Pharmaceutical companies Accord-UK and Auden Mckenzie have lost their appeal to overturn a £2.8 million fine for illegal market sharing relating to hydrocortisone 20mg tablets.

The Competition Appeal Tribunal has unanimously upheld the level of penalty imposed by the Competition and Markets Authority. In 2021, the CMA found Auden Mckenzie had broken competition law after it paid off a potential rival not to enter the hydrocortisone market, in order to preserve its ability to increase prices.

In a judgment handed down on 29 April, the CAT found the penalty of £2,798,525 was fair and proportionate. The penalty was imposed as a result of a CMA investigation into the conduct of several pharmaceutical firms: Auden Mckenzie and later Actavis UK (now known as Accord-UK); Waymade; and AMCo (now known as Advanz Pharma).

In 2021, the CMA found that Auden/Actavis charged the NHS excessively high prices for hydrocortisone tablets from 2008 until 2017 (for the 20mg strength) and until 2018 (for the 10mg strength). The CMA’s findings that these prices were excessive and unfair were upheld in the CAT’s judgment of September 2023.

The CMA also found that in order to maintain its monopoly position, Auden agreed to make substantial monthly payments to Waymade in exchange for Waymade agreeing not to enter the market independently with its own 20mg hydrocortisone tablets between 2011 and 2015. The CMA imposed a penalty of £2.8 million on Accord-UK and £2.2 million on Waymade.

Neither Waymade nor Auden/Actavis appealed the finding that they had entered into a market sharing agreement on 20mg hydrocortisone tablets, but Auden/Actavis appealed the CMA’s approach to calculation of its penalty. The CAT has now upheld that penalty in full.

The CAT’s judgment in September 2023 unanimously upheld the CMA’s finding that the prices Auden/Actavis UK charged for hydrocortisone tablets between 2008 and 2018 were excessive and unfair. This resulted in fines of almost £130 million.

In its 2021 decision, the CMA also found that Auden/Actavis agreed to make substantial monthly payments to AMCo (now known as Advanz Pharma) in exchange for AMCo agreeing not to enter the market independently with its own 10mg hydrocortisone tablets between 2012 and 2016.

The CMA fined the parties a total of £106 million, and the parties appealed. The CAT allowed these appeals on a procedural point, and the CMA is seeking leave to appeal that decision from the Court of Appeal.