The Competition Appeal Tribunal (“CAT”) recently upheld an appeal of the Competition Market Authority’s Hydrocortisone Decision after finding that the provisional judgment on cartel infringement issued by the Tribunal in 2023 could not stand because of due process failings. On March 8, 2024, the Tribunal issued a final judgement granting the appeal because of the CMA’s failure to cross-examine two witnesses who were expressly called by the Appellants to refute the cartel infringement. The Tribunal determined that this failure “fatally” undermined the CMA’s conclusion that there was sufficient material to support a finding of cartel infringement based on documentary evidence alone.
In 2021, the CMA issued the Hydrocortisone Decision, which found that various Appellants had infringed the UK competition law by charging excessive pricing (abuse of dominance) and participating in agreements to stay out of the market (cartel infringements). After appeals of the CMA’s decision were filed, the Tribunal issued separate judgments to address the abuse of dominance and cartel infringement. On September 18, 2023, the Tribunal rejected the abuse of dominance appeals and, on September 29, 2023, issued a provisional judgment on the cartel infringement. The Tribunal stated that it only issued a provisional judgment because it had due process concerns regarding the CMA’s decision to cross-examine two critical witnesses for the Appellants on issues other than cartel infringement. According to the Tribunal, the CMA’s continued position has been that such cross-examination was not necessary.