‘Reconceptualising deterrence within competition policy’

Only three more sessions remain in our Autumn seminar series, including the tantalising prospect of some distinguished guest speakers. On Friday 11th December, we are delighted to welcome back the ever-enthralling Jonathan Galloway (Newcastle Law School), who presented at our Annual Conference back in 2007. Jonathan is a Senior Lecturer in Law at Newcastle University and an expert in Competition Law. His research interests include the intersections of competition law (particularly its relationship with politics, innovation, and industrial policy), international convergence, and cooperation between competition authorities.

Jonathan will be presenting one of his current research projects, entitled ‘Reconceptualising deterrence within competition policy‘. An abstract for his paper can be found below.

Abstract

Competition authorities, and the politicians who hold them to account, primarily rely upon deterrence theory in order to achieve their objective of preventing anti-competitive behaviour. Broad trends of increased severity of sanctions, particularly for cartel behaviour, are easily observable and yet it is far from clear that the deterrence led approach is effective. Heightened severity of sanctions, and heightened probability of sanction, facilitated in part through the operation of leniency, ought to prevent recidivism and also lead to lower levels of infringements as part of a successful deterrence strategy, yet there is little evidence to suggest this is taking place. Efforts to ‘double down’ on deterrence through introducing individual sanctions in jurisdictions such as the UK can be useful but are unlikely to provide a complete answer in order to prevent anti-competitive behaviour. This paper will argue that deterrence should continue to be an important driver of competition authorities’ enforcement strategy, but that it should be framed within an overarching strategy of regulatory compliance, which affords greater priority to individual accountability, and embraces insights from behavioural economics in order to foster the creation of a competition culture and so as to align the incentives between corporation and individual.

The seminar takes place from 13:00-14:00 in the Thomas Paine Study Centre, Room 1.03. Tea will be provided directly afterwards in the MBA Café (TPSC, Floor 2).

‘An Examination of Russia’s Anti Bid Rigging Policy’

Natalya Mosunova, a PhD Researcher at CCP and the UEA Law School, is at the Competition Law and Economics European Network (CLEEN) Workshop which, this year, is hosted by the Tilburg Law and Economics Center (TILEC). Natalya is presenting her most recent paper entitled ‘An Examination of Russia’s Anti Bid Rigging Policy‘. An abstract for the paper can be found below.

Abstract

The research focuses on the ineffectiveness of cartel criminalisation in Russia, in relation to bid-rigging, investigating whether or not the causes are specific to Russia. The peculiarity of the case lays in the fact that criminalisation is a rather widespread and well-functioning mechanism in Russia. Criminal responsibility for anticompetitive conduct was adopted into Russian criminal legislation in 1997; however, criminalisation is an often overlooked instrument.

For the purpose of the research, the specific characteristics of collusive tendering have been defined. The paper investigates the role of criminal sanctions, among other types of enforcement actions, for this category of antitrust violation. Officials from the Russian Federal Competition Commission and from one of its regional offices were interviewed in order to understand the reasons of malfunctioning of criminal responsibility in bid rigging. The findings from interviews are supplemented by study of relevant cases and demonstrate that the lack of adjustment of legislation to needs of competition law, mismatch of anti bid rigging policy with social expectations and, mainly, resistance of the system of public authorities to eliminate the effect of cartel criminalisation. The paper’s findings help to assess the enforcement of existing law and the reforms.

 

Dr Peter Whelan publishes article on cartel criminalisation and due process in the Northern Ireland Legal Quarterly

Dr Peter Whelan (CCP and UEA Law School) has had his article, ‘Cartel Criminalisation and Due Process: the Challenge of Imposing Criminal Sanctions Alongside Administrative Sanctions within the EU’, published in the latest edition of Northern Ireland Legal Quarterly. An abstract of his article can be found below.

Abstract

There is increasing debate within the EU concerning the imposition of criminal sanctions upon those individuals who engage in cartel activity. For it to be legitimate, such cartel criminalisation must respect the due process guarantees contained in the European Convention on Human Rights. Unfortunately the literature on this issue is deficient and the specifics of this legal challenge are not fully understood. In particular, a comprehensive analysis of the due process-related challenge presented when personal criminal antitrust sanctions are employed alongside administrative sanctions for a given cartel is conspicuously absent from the literature. This article rectifies this deficiency by examining this particular legal challenge and its relevance to information exchange, double jeopardy and concurrent antitrust proceedings. In doing so, it identifies practical techniques designed to meet the challenge of due process in this context, as well as the inherent tensions between due process and the objectives of European antitrust criminalisation.

Peter Whelan, ‘Cartel Criminalisation and Due Process: the Challenge of Imposing Criminal Sanctions Alongside Administrative Sanctions within the EU’ (2013) 64(2) Northern Ireland Legal Quarterly 143.

CCP Seminar: Reforming the UK Cartel Offence

The CCP’s Spring seminar series continues on Friday 10th May as Peter Whelan (CCP and UEA Law School) offers his take on ‘Reforming the UK Cartel Offence‘. Since the UK reforms were first proposed back in 2011, Peter has been a prominent voice during the consultation period and beyond. An abstract for his seminar can be found below.

Abstract

In March 2011, the Department for Business, Innovation and Skills (‘BIS’) began a public consultation on the reform of the UK competition regime. BIS initially proposed four different options for the reform of the UK Cartel Offence, the criminal law which provides for up to 5 years of imprisonment for convicted cartelists. In its final report in 2012 BIS advocated the removal of the ‘dishonesty’ element from the Cartel Offence and the ‘carve out’ from the offence of agreements made openly (‘Option 4’). On 25 April 2013 the Royal Assent was given to legislation implementing BIS’s recommendation: Enterprise and Regulatory Reform Act 2013. Entering into force later this year, this piece of legislation also provides for additional (controversial) amendments to the UK Cartel Offence.

This presentation aims both to explain and to examine critically this particular reform of the UK Cartel Offence. In order to do so, the presentation is divided into the following parts: Part I: Introductory Comments; Part II: BIS’s Consultation Document; Part III: My Response to the Consultation Document; Part IV: Other Responses to the Consultation Document; Part V: The Government’s Response; Part VI: Legislative Change; and Part VII: Final Comments.

See also Peter’s blog post from April 2012 on the rejection of ‘dishonesty’ under the reformed cartel offence.

Cartel Criminalization and the Challenge of ‘Moral Wrongfulness’

The latest research offering of the CCP’s Dr Peter Whelan has been published in the prestigious Oxford Journal of Legal Studies. His article, entitled ‘Cartel Criminalization and the Challenge of ‘Moral Wrongfulness’‘, is available for advance access download via Oxford Journals. An abstract for his paper can be found below.

Abstract

There is considerable debate at present, particularly in the Member States of the European Union, concerning the necessity and appropriateness of imposing custodial sentences upon individuals who have engaged in cartel activity. The vast majority of those contributing to this debate have focused on the punishment theory of (economic) deterrence. Little room is devoted to the punishment theory of retribution or to consideration of the ‘moral wrongfulness’ of cartel activity. This article posits that the issue of ‘moral wrongfulness’ is a central issue in the debate on cartel criminalization, irrespective of whether it is deterrence theory or retribution theory that informs the debate. By employing a norms-based approach, this article then examines the extent to which cartel activity can indeed be interpreted as conduct that is ‘morally wrong’ due to its violation of the moral norms against stealing, deception and/or cheating. By doing so, this article not only challenges traditional views of the nature of cartel activity but also provides scholars, legislatures and policymakers with specific analyses which are crucial to a decision whether to justify (or indeed to oppose) the introduction and maintenance of criminal cartel sanctions.

New Journal Article: ‘Strengthening Competition Law Enforcement in Ireland’

Dr Peter Whelan (CCP and UEA Law School) has had his article ‘Strengthening Competition Law Enforcement in Ireland: The Competition (Amendment) Act 2012‘ published in the latest issue of the Journal of European Competition Law & Practice. An abstract for Dr Whelan’s paper can be found below.

Abstract

Ireland has increased the maximum custodial sentence that can be imposed on a convicted cartelist from 5 to 10 years, has increased the maximum fines for competition offences and has introduced Director Disqualification Orders for non-indictable competition offences.

The increase in the maximum custodial sentence in particular has some potential to perform a signalling function to trial judges in Ireland regarding the seriousness of cartel activity and the need for the imposition of custodial sentences on cartelists.

Recent experience in Ireland demonstrates that juries may be prepared to convict alleged individual cartelists, even when their doing so may result in the imposition of a custodial sentence.

By no longer requiring plaintiffs in follow-on private actions to prove a breach of competition law, Irish law has also facilitated less burdensome private competition law enforcement.

Dr Peter Whelan and Dr Pinar Akman contribute to the Antitrust Marathon in Rome

Dr Peter Whelan and Dr Pinar Akman, both of whom lecture at UEA Law School, were invited to and attended the ‘Antitrust Marathon’ which was held at the Italian Competition Authority in Rome on 18 March 2013.

Dr Whelan chaired a panel session dedicated to the discussion of criminal enforcement of competition law. He also contributed to the panel discussion on the use of private enforcement of competition law. He argued that, for various reasons, public enforcement is far superior to private enforcement in achieving the relevant objectives of competition law enforcement and that therefore resources should be focused on the former type of enforcement rather than the latter.

Dr Akman also contributed to the debate on the private enforcement of competition law. In particular she argued that there are many procedural issues that have to be resolved in national laws, such as that of the UK, before one can expect to see an increase in private litigation. One pertinent issue is the period of limitations regarding follow-on actions against an infringer which has not appealed the authority decision finding an infringement of competition law.

The Antitrust Marathon is a long-running series of roundtable discussions sponsored by the Institute for Consumer Antitrust Studies of Loyola University Chicago School of Law and the Competition Law Forum of the British Institute of International and Comparative Law on enduring issues of comparative competition law. These discussions always take place the day before or after the great marathon races of the world. 

 The Italian Competition Authority and the University of Rome I (Sapienza) were additional cosponsors of the 2013 Antitrust Marathon. A transcript of the proceedings will be published in due course in the European Competition Journal.