Criminal Cartel Sanctions Under the UK Enterprise Act: An Assessment

Abstract

The focus of this paper is on the deterrence of ‘hard core’ cartels through appropriate sanctions. The UK has the toughest provisions in the EU, with a dual system of administrative regulation and fines directed at firms and penalties, including criminal proceedings, targeted at the individuals involved. The paper considers experiences since the introduction of personal criminal sanctions for the UK's ‘cartel offence’ under the Enterprise Act 2002. Although an enforcement lag was to be expected, the threat of criminal sanctions against individuals to date has seemed more apparent than real. Problems in applying the policy are identified through an assessment in terms of the necessary prerequisites for the successful criminalisation of antitrust offences proposed by Wils (2005) and ongoing developments in the UK are discussed. The findings shed some light on the difficulties of introducing effective criminal sanctions on individual cartel behaviour at Member State level and suggest more general consideration be given to non criminal director disqualifications.