Another False Dawn For UK Criminal Cartel Enforcement?

Published date12 November 2020
Subject MatterAnti-trust/Competition Law, Criminal Law, Cartels, Monopolies, White Collar Crime, Anti-Corruption & Fraud
Law FirmBCL Solicitors LLP
AuthorMr Alex Swan and Richard Sallybanks

BCL's Alex Swan, with Richard Sallybanks, looks at whether we can expect an upturn in the level of criminal investigation of cartel activity in light of the Memorandum of Understanding recently concluded between the SFO and the CMA.

On 21 October 2020, the Serious Fraud Office ("the SFO") and the Competition and Markets Authority ("the CMA") signed a Memorandum of Understanding ("MoU") which sets out the basis upon which the two authorities will cooperate and coordinate in investigations and/or prosecutions of individuals for the criminal cartel offence under section 188 of the Enterprise Act 2002 ("EA02").

This comes against the background of the former chairman of the CMA, Lord Tyrie, stating in an open letter to the Secretary of State for Business, Energy and Industrial Strategy as long ago as March 2019 that the CMA should focus more directly on protecting the interests of the consumer by, inter alia, " [requiring] the CMA to relinquish or share some of its existing powers and functions - for example, in the field of regulatory appeals and of criminal cartel enforcement - so that it can focus more effectively on its core responsibilities." Indeed, Lord Tyrie's proposals recognised that "Because hard-core cartel prosecutions are only a small part of its overall enforcement work, the CMA does not maintain the scale of specialist expertise normally possessed by agencies with powers of prosecutions. Primary responsibility for cartel prosecutions may sit more naturally with an agency that routinely brings criminal prosecutions, such as the Serious Fraud Office."

In light of this frank acknowledgment by Lord Tyrie, borne out by the less than impressive track record of the CMA (and its predecessor, the Office of Fair Trading ("the OFT")) in the area of criminal cartel enforcement, it therefore is not overly surprising, particularly in the current era of greater cooperation between enforcement agencies (both domestically and internationally), that agencies such as the SFO and the CMA have decided to enter into this MoU (noting that, in fact, the MoU updates a previous MoU entered into between the two agencies in 2014). So, does this MOU reflect any great change and herald the prospect of greater enforcement of the criminal cartel offence? Or is it another false dawn?

The Criminal Cartel Offence

Section 188 of the EA02, which came into force in June 2003, created the criminal cartel offence ("the s188 offence") which can only be committed by individuals, not...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT