Rights statement: This is a draft of a chapter/article that has been accepted for publication by Oxford University Press in the forthcoming book The UK Competition Regime edited by Barry Rodger, Peter Whelen, Angus MacCulloch due for publication in 2021.
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Research output: Contribution in Book/Report/Proceedings - With ISBN/ISSN › Chapter
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TY - CHAP
T1 - The Quiet Decline of the UK Cartel Offence
T2 - A Principled Victory in the Face of Practical Failure
AU - Macculloch, Angus
N1 - This is a draft of a chapter/article that has been accepted for publication by Oxford University Press in the forthcoming book The UK Competition Regime edited by Barry Rodger, Peter Whelen, Angus MacCulloch due for publication in 2021.
PY - 2021/5/6
Y1 - 2021/5/6
N2 - 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.
AB - 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.
M3 - Chapter
SN - 9780198868026
SP - 337
EP - 358
BT - The UK Competition Regime
A2 - Rodger, Barry
A2 - Whelan, Peter
A2 - MacCulloch, Angus
PB - Oxford University Press
CY - Oxford
ER -