Oceanic Disparities in Cartel-Recidivism Attitudes and Penalties

Abstract

There is a wide gulf between EU and US antitrust authorities on the prevalence of serial cartel conduct. These attitudinal differences have resulted in disparate anti-cartel enforcement practices with regard to enhanced penalties for corporate recidivism. Cartel recidivism is regarded as a serious, large-scale problem among EU antitrust officials. In contrast, I note a shift in the tone in the few speeches by DOJ officials that mention recidivism, from one of concern and vigilance years ago to denial. Today, recidivism is rarely mentioned in DOJ documents or speeches, and when it is raised as an issue, it is dismissed as empirically unimportant for cartel conduct in the United States. While the EC has incorporated and implemented more severe fine enhancements for recidivists since 2007, the DOJ leadership has largely ignored the culpability enhancement called for in the U.S. Sentencing Guidelines.   I have located about 20 instances of serial cartelists that appear to meet the most stringent legal requirements for upward adjustments in cartel-fine recommendations to the courts by the DOJ. That is, the DOJ seems to be ignoring its responsibilities to follow the Sentencing Guidelines when proposing cartel fines.

Keywords: Cartel, recidivism, antitrust, penalties, European Commission, U.S. Department of Justice

JEL Classification: K21, L13, L4