On 14 March 2019, the UK Competition and Markets Authority (CMA) decided to close its investigation into a discount scheme by Merck Sharp & Dohme Limited (MSD). The CMA concluded that there were no grounds for it to take action, since MSD's discount strategy was not likely to limit competition in anticipation of the market entry of competitive products. In other words, when analysing a discount, the CMA looked at the likelihood of it having exclusionary effects. Since it found no such likelihood, the investigation was closed.
In terms of abuse, and in line with the ECJ case law in Intel,  the CMA's starting point was that "not all discounts granted by undertakings in a dominant position are" abusive. Rather, a variety of factors need to be assessed in order to determine the existence of an abuse. These factors include the rules applicable on the grant of the discount as well as the discount's tendency to bar competitors from accessing the market, to strengthen the dominant position of the undertaking concerned and to influence purchasing behaviour.
Nonetheless, the turning point for the CMA's reasoning was the objective assessment of the circumstances of the market when the discount scheme was introduced in March and April 2015. The CMA clarified that "the likely effect of a dominant undertaking's conduct should be assessed by reference to the point at which the allegedly abusive conduct was implemented rather than at some point after the allegedly abusive conduct had been in place". After carrying out detailed research which included surveying NHS staff, the CMA concluded that the market reality at that time prevented the scheme from developing any likelihood of exclusionary effects, since it proved that MSD's assumptions as to the NHS's potential reaction were incorrect. In effect, the NHS showed less clinical caution and a much greater willingness to use infliximab biosimilars. This meant that the pricing scheme did not have the alleged anticipated effect, as the contestable part of the market was much greater.
 In Intel, the Court of Justice broke with its more formalistic previous case law on rebates and stipulated that: "the case law must be further clarified where the undertaking concerned submits, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, of producing the alleged foreclosure effects." (par. 138) In essence, the EU court underscores that, if evidence is adduced that rebates are not capable of foreclosing access to the market at issue, then dominant undertakings cannot be accused of any antitrust infringement irrespective of the discount system's design.