The Quiet Decline of the UK Cartel Offence:A Principled Victory in the Face of Practical Failure

The UK Cartel Offence was introduced in the Enterprise Act 2002 to challenge hard-core cartels and enhance the deterrent effect of the UK competition regime. In its initial phase of operation there was some success. However, a number of significant cases failed to secure convictions. This damaged confidence in the ability of the UK competition authorities to bring successful prosecutions, and ultimately questioned the usefulness of the Cartel Offence. This Chapter examines the problems that beset the original Cartel Offence and the lessons learned from the small number of prosecutions brought before the courts. It goes on to examine the reforms in 2013, that removed the controversial ‘dishonesty’ element from the offence, and replaced it with carve outs for openness and publication. Alongside the practical issues in relation to the development of the UK Cartel Offence consideration is also given to a parallel process which saw a form of consensus developing in the academic literature as to the nature of the wrong at the heart of individual cartel activity. It is suggested that this greater understanding can be used to direct efforts to rebuild confidence in the reformed UK Cartel Offence going forward. Increased importance should be given to the securing of good evidence of individual culpability in relation to cartel activity during the investigation phase. Once good evidence is secured, better prosecution cases can be built on the basis of the new narrative of wrongfulness for hard core cartel activity

State intervention in pricing:an intersection of EU free movement and competition law

A number of EU Member States have chosen to use price control as a regulatory tool to alter the incentives for consumer or producer behaviour. This paper analyses the mechanisms through which EU law restricts a Member State’s ability to directly regulate prices through the antitrust prohibitions, market organisation Regulations, and the free movement prohibitions. It shows that the protection of price competition is central to all form of regulation and sets out that that the protection of price competition has become influential as a policy goal across EU law and is given special status within the internal market

Evidence and Proportionality in Free Movement Cases:The Impact of the Scotch Whisky Case

Market interventions to protect public health are likely to be subject to EU law challenge as contrary to the free movement rules. In Scotch Whisky the CJEU stressed the importance of defined public health objectives and supporting evidence in the analysis of whether interventions are justified as ‘appropriate’ and ‘necessary’. This article considers the wider implications of this judgment for the application of the proportionality test in free movement cases and in the case of innovative interventions that are adopted on a complex evidence base. The article argues that the unusual development that Scotch Whisky made to the CJEU’s wider trend towards greater engagement with evidence should be treated with caution, and that it is possible for national courts to apply the new guidance on the role of evidence in the proportionality analysis with sensitivity. The article also argues that policymakers must now be more aware of how they frame innovative interventions and the evidence supporting them

The cartel offence:defining an appropriate "moral space"

There is increasing support in Europe for individual criminal penalties for cartel activity. The UK’s initial experience of criminalisation has not been successful and reform has been suggested. It is argued that when designing a criminal cartel offence deterrence cannot be the only concern and the true wrongdoing in cartel behaviour must be at it centre. Cartel harm does not provide good basis for criminalisation and it is argued that its proper basis should be the individual cartelist’s intention to subvert the competitive process. A reformed UK cartel offence, without the current dishonesty test, should reflect the central concern of subverting the competitive process clearly

Cartels: Deterrence, Leniency and Criminalisation

Cartels are generally recognised as the most serious violation of competition law. The Chapter, new to the 4th ed of the Text, explains the nature of cartels and their historical importance to European industry, before going on to explain the increasingly hostile attitude of competition law enforcement authorities and the tools used to detect and punish cartel activity