The UK’s New Cartel Offence

From April 1, 2014, a new regime for criminal antitrust investigations applies in the UK with the entry into effect of the new Competition and Markets Authority (CMA) ( see Antitrust Alert). The CMA recently has published guidance on how this new regime will work. The goal is to make it easier for the CMA to bring criminal proceedings against individuals who allegedly have been involved in cartels.

This commentary, the fourth and final in our series on changes to UK competition enforcement, summarizes the key changes to the cartel offence and implications for businesses.

The main change

Prior to April 1, 2014, the criminal cartel offence required that an individual must have "dishonestly" agreed with one or more other persons to engage in cartel activities. Under the new regime, this dishonesty element will be removed, but new defenses are allowed. To establish criminal cartel activity the CMA need only prove intent to enter into an agreement and to operate the arrangement in question. The Government's view is that the inclusion of the dishonesty element in the cartel offence inhibited the successful prosecution of cases (only one cartel offence has been successfully tried since 2003, where three executives were jailed for involvement in a cartel involving marine hoses) and anticipates that the change to the law will improve enforceability and increase deterrence.

The new cartel offence

The new cartel offence removes the need to prove that:

The defendant's behavior was dishonest according to the ordinary standards of reasonable and honest people (the objective element); and

The defendant himself must have realized that his behavior was by those standards dishonest (the subjective element).

Accordingly, the new cartel offence will allow the CMA to prosecute any individuals involved in an agreement between competitors to fix prices, share markets, rig bids or limit outputs, in addition to pursuing the companies employing these individuals for violation of UK and/or EU laws prohibiting cartels.

However, there are a number of exclusions or defenses.

Exclusions

A change to the law introduces circumstances where the cartel offence will not have been committed. Parties to arrangements that would otherwise fall within the offence may bring the arrangements outside the scope of the offence by ensuring that the arrangements satisfy the requirements of the following exclusions:

The notification exclusion provides that an individual will not commit...

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