Competition

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Background

On 20 April 2026, the Law Commission, an independent organisation established to keep the law of England and Wales under review and recommend reform, announced a new project to consider the potential introduction of a consumer class actions regime in England and Wales. While independent, the Law Commission’s project is sponsored by the Department for Business and Trade (DBT), which is completing its review of the current competition collective (class) action regime that was introduced in the UK in 2015.  There has long been speculation that the government would use competition claims as a pilot before expanding the regime to consumer claims, including product liability and other claims, and this could be the first step in that process.

The Terms of Reference do not shed much further light on the project at this stage, aside from identifying that its purpose is to “set out the benefits and risks associated with the introduction of a collective class actions regime for consumer law claims…”.

However, it is a further signal that consumer protection and providing meaningful recourse for consumers has become a greater policy priority as it follows the recent implementation of the Digital Markets, Competition and Consumers Act 2024, which significantly overhauled UK consumer protection in digital markets, strengthening rights against fake reviews, drip pricing, subscription contract traps and other unfair practices.

This project will not consider substantive consumer rights but is instead squarely focussed on the design of a powerful new private enforcement mechanism to allow opt-out class actions to facilitate mass consumer claims in the UK.  This should be seen against a backdrop of growing pressure on the existing competition collective action regime where claimants have sought to characterise consumer law claims as competition claims in order to bring them before the Competition Appeal Tribunal (CAT) as an opt-out collective action.  The CAT has pushed back on this, reminding parties in one recent case that “competition law is not a general law of consumer protection”. A dedicated consumer class actions regime would remove the need for such creative framing and, in doing so, would significantly expand the pool of claims that can be brought on an opt-out basis.

If the Law Commission’s decision is to recommend the introduction of a class actions regime for consumer claims, then it will also make recommendations as to the design of such a regime.

Continue Reading The Law Commission of England & Wales announces a review of a potential new class actions regime

Article 22 and the Pharma Context

Competition authorities in Europe have for years grown increasingly concerned about so-called “killer acquisitions,” particularly in life sciences where targets often have high innovation potential but little or no turnover. These are transactions where the acquired company’s competitive significance lies in its pipeline, R&D or intellectual property rather than its financials. Such deals can escape traditional turnover-based merger control thresholds, yet – the authorities argue – may still raise serious concerns about future (i.e., potential) competition and innovation. That said, the label “killer acquisition” is something of a misnomer. In practice, transactions undertaken solely to eliminate innovation from a smaller rival are exceedingly rare.

To address this risk, the European Commission has encouraged greater use of Article 22 of the EU Merger Regulation (EUMR), which allows Member States to refer cases for EU review even if they do not meet EU thresholds. Subject to potential further developments, two recent judgments, the Court of Justice’s ruling in Illumina/GRAIL and the General Court’s decision in Brasserie Nationale, now provide the leading interpretation of how Article 22 operates in practice, particularly in relation to call-in powers and timing of referrals.

Continue Reading Article 22 Trends in Pharma M&A: Call-In Powers and Timing

On 4 January 2022, after approximately four years from the UK government’s first attempt to reform the UK national security screening regime, the National Security and Investment Act 2021 (NSIA) became operational. The NSIA represents a radical overhaul to investment screening in the UK as it introduces for the first time a mandatory and suspensory filing obligation for transactions in 17 sectors considered as particularly sensitive (among which are Synthetic Biology and Artificial Intelligence).

Alongside a mandatory and suspensory regime for certain transactions, parties are also encouraged to notify transactions voluntarily if—regardless of the sector concerned—the transaction might have national security implications based on (i) nature/identity of the acquirer, (ii) target’s activities, and/or (iii) nature and degree of control acquired. Unlike the mandatory filing obligation which only captures acquisition of entities, the voluntary regime also captures the acquisition of tangible and intangible assets—thereby including the acquisition, assignment and/or licensing of IP rights over e.g. molecules, compounds, methods or technologies.Continue Reading The UK National Security and Investment Act 2021 (NSIA) – Implications for Life Sciences

Advocate General Kokott issued her opinion last week in the preliminary ruling referral from the UK Competition Appeal Tribunal (CAT). The CAT proceeding is itself an appeal against an infringement finding against a number of companies (except one, IVAX, which is now part of TEVA, which received a ‘No Grounds for Action’ letter).

AG Kokott finds that an agreement to settle a patent dispute may constitute a restriction of competition by object or by effect and that entering into such an agreement may be an abuse of a dominant position. This is in line with the General Court’s recent judgments in Perindopril and Lundbeck, but her views diverge on market definition where she seems to side with the CAT on a narrow, molecule-level definition.Continue Reading Paroxetine: AG Rules on Reverse Payment Settlement Referral

Arnold & Porter’s Future Pharma Forum invites you to a complimentary competition/antitrust seminar aimed at junior lawyers and professionals new to the UK/EU life sciences industry. This seminar will provide a refresher of key EU and UK competition law topics, cover some key issues from an in-house practitioner’s perspective and touch on the implications of…

On 5 December 2018, the High Court rejected Concordia’s application to obtain full access to the information underpinning the Competition and Markets Authority’s (CMA) application for a warrant for a dawn raid, over which the CMA had claimed public interest immunity (PII). The judge did, however, allow Concordia access to some information.
Continue Reading Battle for access to information underlying the UK CMA dawn raid of Concordia

On 21 September 2017, Advocate General Saugmandsgaard Øe delivered his Opinion in Case C-179/16 Hoffmann-La Roche, finding that licensed and unlicensed medicinal products used for the same indication may fall within the same relevant product market.

Background

Genentech’s drugs Avastin (which is licensed to Roche) and Lucentis (licensed to Novartis) are based on different active substances but are derived from the same antibody and have similar mechanisms of action. Avastin obtained marketing authorisation first, for treatment of certain types of cancer and Lucentis later obtained marketing authorisation for treatment of certain ophthalmologic conditions. However, during the interval between grant of the two marketing authorisations, a number of medical practitioners used Avastin in smaller doses to treat ophthalmologic conditions. Furthermore some practitioners have continued to use Avastin even after grant of marketing authorisation for Lucentis because of the substantially lower treatment cost of Avastin.Continue Reading Hoffman-La Roche – AG finds unlicensed use should be included in relevant product market