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Criminal cartels: can companies be prosecuted?

By Robin Barclay

On 1 April 2014, a new and improved criminal cartel offence will be introduced in the UK by virtue of section 47 of the Enterprise and Regulatory Reform Act 2013 (ERRA13). By removing the requirement for an individual to have acted dishonestly in relation to commercial arrangements that involve deliberate price fixing, market sharing, bid rigging and limiting output, the new offence should make it easier for the Competition and Markets Authority (CMA) and Serious Fraud Office (SFO) to launch prosecutions of individuals involved in prohibited hardcore cartels.

However, by omitting to change the cartel offence so that it embraces corporate criminal liability as well, the question remains: could the CMA or SFO charge a company with cartel crime?

At first blush the answer is ‘no’, owing to the fact that the cartel offence, as created by section 188 of the Enterprise Act 2002 (EA02), applies to individuals and not companies. On this basis therefore so far as principal offenders go, commercial organisations and companies cannot be prosecuted because that was parliament’s intention…

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