Analysing the place of the criminal cartel offence within the regulatory landscape of anti-cartel enforcement in the UK : more change needed?

Abstract

Whilst modern competition law is no longer in its infancy in the UK, its contours continue to evolve and develop as understanding of its challenges and complexities increases. The addition of a criminal cartel offence within the wider anti-cartel enforcement landscape was intended to improve the deterrent impact of the regime. However, the offence itself has arguably failed to have a significant impact upon the fight against cartel activity. Attempting to determine the reasons behind the failure of the criminal cartel offence is not new. It has been the subject of much academic debate, and indeed a Government consultation. This work however, aims to add a new perspective through which the question can be conceptually analysed. It does so by examining the place that the criminal cartel offence occupies within the anti-cartel enforcement landscape, in order to discover the impact that the regulatory dynamics have had on the enforcement and success of the cartel offence. Regulatory dynamics in the context of this work are the interactions that occur between the various aspects of anti-cartel enforcement. The introduction of the criminal cartel offence in the UK in 2002 for individuals who engage in hard-core cartel activity was at the time, largely atypical across the traditional competition law landscape in Europe. The criminal cartel offence represented a new tool with which the Competition and Markets Authority could fight cartels, and brought the individuals ultimately responsible for their creation within the scope of the law for the first time. The anti-cartel strategy in the UK is based on deterrence theory, and it was within this tradition that the criminal cartel offence was created. In the 10 years that followed its enactment however, there had been only one successful prosecution. In 2013, the offence was amended to make it easier to prosecute, but enforcement of the offence remains muted. This work analyses the position of the criminal cartel offence within the wider anti-cartel enforcement landscape. A landscape that, at the time of writing, includes European Union competition law and policy. The purpose of this work therefore, is to determine whether further changes to the cartel offence in the UK that account for the complex matrix of interactions that occur within the anti-cartel regulatory landscape, can improve its impact on the fight against cartels, and to extrapolate recommendations from the UK experience for any Member States who wish to add criminal sanctions to their enforcement toolkit in the future.