Criminalising cartels — the new rules

By Cyrus Mehta

The Enterprise and Regulatory Reform Act 2013 makes significant changes to the criminal cartel offence, coming into force on 1 April 2014. This is intended to make it easier in future for the Competition and Markets Authority (CMA) to bring successful prosecutions against company executives for anti-competitive conduct.

The consequence of these amendments is that company directors and other employees will need to exercise even greater caution to protect their own personal position when entering into co-operative arrangements with competitors that might fall within the scope of the cartel offence. The removal of the ‘dishonesty’ test means that they will have to take active steps to avoid personal criminal liability.

Under section 188 of the Enterprise Act 2002 (as amended by the new act), the cartel offence applies where individuals enter into ‘hardcore’ anti-competitive agreements aimed at: price fixing; limiting the supply/production of goods or services; market sharing; and bid rigging…

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