Appeal Court Judgements


TitleGlaxoSmithkline and Competition Commission
Case No61/CAC/Apr06
PartiesGlaxoSmithKline South Africa (Pty) Ltd vs David Lewis N.O,Norman Manoim N.O.,Yasmin Carrim N.O.,The Competition Tribunal,Mpho Makhathini,Nelisiwe Mthethwa,Musi Msomi,Elijah Paul Musoke,Tom Myers,Aids Healthcare Foundation Ltd

The Competition Appeal Court dismissed an application by GlaxosmithKline South Africa (GSK) to review and appeal a decision of the Competition Tribunal not to make an agreement between the Competition Commission and GlaxosmithKline South Africa (GSK) into a consent order. Background In September 2002, the Treatment Action Campaign (TAC), a non governmental organisation active in the health care sector, led a group of individuals and organisations that initiated a complaint against GSK with the Commission, alleging that it had contravened the Competition Act by excessively pricing its antiretroviral drugs (‘ARV’s’) used to treat HIV positive persons. Shortly thereafter in January 2003, another group of complainants the Aids Healthcare Foundation and Others (AHF) lodged a complaint with the Commission. The TAC and AHF complaints related to substantially the same conduct. For this reason the AHF complainants were willing to have the Commission consolidate their complaint with that of the TAC, and have them investigated together. The Commission then investigated the complaint. Just prior to the date when the Commission would have had to refer the complaint to the Tribunal, it entered into an agreement with GSK in which it agreed not to refer the matter, in return for the applicant agreeing to licence various generic manufacturers to manufacture ARV’s. The Commission was satisfied with this arrangement, as it appears, so was the TAC and its consortium of complainants, which also entered into a similar agreement. However the AHF complainants, unlike the TAC, were not a party to the agreement and allege that they were never consulted about its terms. The AHF complainants then decided to refer their complaint to the Tribunal themselves. On 22 November 2004 GSK applied to have the December 2003 agreement made into a consent order. The AHF complainants, viewing this as a tactical ploy to deny them their relief, opposed the granting of the order and opposed the application. The December 2003 agreement was entered into at time when the one-year period for referral had not yet expired. However, the application in terms of the Competition Act was brought after the expiry of the one year period, at a time when the Commission was deemed to have non-referred the complaint. The Tribunal found that the Commission no longer retained the right to prosecute and hence no right to conclude, revise or amend a consent agreement. The Tribunal said in its decision, ”Without the Commission retaining this power, we have no jurisdiction to make the agreement that was entered into in December 2003 into a consent order. The application accordingly fails”. The AHF complainants withdrew their opposition to the consent order application on 2 March 2006, at the same time withdrawing their complaint referral against GSK.

SourceCompetition Appeal Court
Reasons and Orders62CACApr06              
Date Posted25/11/2010 12:43pm
All Other Case DocumentsNo documents available