The UK Response to the Global Effort Against Cartels: Is Criminalization Really the Solution?

Abstract

This article examines considers the global effort against hard core cartels and, in particular, the increasing tendency for states to introduce criminal cartel regimes and. It notes that, despite this tendency, few jurisdictions, aside from the US, have been successful in imprisoning individuals involved in cartel conduct. The article and examines why this might be, focusing on the difficulties and problems that have been encountered with the criminal cartel offence in the UK. The article discusses both theoretical and practical obstacles which appear, up until now, to have undermined the force and effectiveness of the UK regime and led to concerns about its scope. Given the difficulties identified, the article concludes that caution should be exercised before a state, intent on increasing deterrents to cartel activity, decides to criminalize such conduct. Rather, it recommends that such jurisdictions should consider not only criminalization of cartel activity but whether steps to enhance civil enforcement might be a preferable and more efficient solution for increasing the force of, and respect for, cartel rules.

Keywords: cartels, deterrence, criminal law, Article 101, Competition Act 1998, Enterprise Act 2002, Enterprise and Regulatory Reform Act 2013, enforcement policy

JEL Classification: K21, L40, L41