Lawful Cartels

Abstract

The prohibition on hard-core cartels unites competition law regimes across the globe. Nevertheless, not every agreement among competitors is unlawful. Rather, a wide array of acceptable cartel or cartel-like agreements are presumed to create efficiencies or promote industrial and social policies.

This chapter illustrates that there is no common framework that guides the assessment of lawfulness. Competition laws differ in the types of agreements they deem as lawful, the justifications invoked, and the assessment strategies (e.g., legal or economic analysis, exclusion rules, or enforcement discretion). In particular, it points to a disconnect between the underlining economic and non-economic benefits invoked to justify certain types of cartels and the strategies guiding their assessments. It calls to rationalise the assessment by aligning the justifications with the assessment strategies, thereby enhancing the effectiveness, transparency, legal certainty, democratic legitimacy, and political accountability of the competition law regimes.

Keywords: lawful cartels; unlawful cartels; public policy considerations; economic benefits; non-economic benefits; exclusion rules