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Working Party No. 3 on Co-Operation and Enforcement Organisation for Economic Co-operation and Development DAF/COMP/WP3(2020)1 Unclassified English - Or. English 22 April 2020 DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS COMPETITION COMMITTEE Working Party No. 3 on Co-operation and Enforcement Criminalisation of cartels and bid rigging conspiracies: a focus on custodial sentences - Background note by the Secretariat - 9 June 2020 This document was prepared by the OECD Secretariat to serve as a background note for Item 1 of 131st meeting of Working Party 3 on Co-operation and Enforcement on 9 June 2020. The opinions expressed and arguments employed herein do not necessarily reflect the official views of the Organisation or of the governments of its member countries. More documentation related to this discussion can be found at: oe.cd/ccbrc. Please contact Ms Sabine Zigelski [E-mail: [email protected]] if you have any questions regarding this document. JT03461087 OFDE This document, as well as any data and map included herein, are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area. 2 DAF/COMP/WP3(2020)1 Criminalisation of cartels and bid rigging conspiracies: a focus on custodial sentences - Background note by the Secretariat* - Notwithstanding the increased adoption of criminal sanctions, there is no international consensus on criminalisation of cartels, and in particular on custodial sentences against individuals. This paper aims at providing guidance on the benefits and challenges of criminal enforcement, focussing on custodial sentences. It describes the economic deterrence theory and the retribution theory that have emerged in the criminalisation debate and summarises the main concerns raised in relation to each theory. It offers an overview of criminalisation trends across jurisdictions, and it identifies the key institutional and procedural questions to be carefully assessed when a jurisdiction considers the criminalisation of cartels. It also discusses the benefits and main challenges for international co-operation between jurisdictions that pursue criminal enforcement and those that focus on administrative/civil enforcement, and the effects of criminalisation on leniency programmes. A case can be made in favour of criminalisation of antitrust enforcement against cartels and bid rigging offences, in particular in favour of custodial sentences against individuals, to complement sanctions against companies. However, not all enforcement regimes are currently built for successful criminalisation. The paper concludes that jurisdictions should gradually build institutions before introducing criminalisation, and that each jurisdiction should determine the right mix of sanctions, depending – among other factors – on social norms, the existing legal framework, resources of competition agencies and the relationship between the competition agency and prosecution authorities. The introduction of criminal enforcement also requires significant advocacy efforts directed at key institutional stakeholders and the general public. * This paper was prepared by Matteo Giangaspero of the OECD Competition Division. The document benefitted from comments from Antonio Capobianco, Sabine Zigelski, Paulo Burnier Da Silveira, Pedro Caro de Sousa, Renato Ferrandi and Isolde Lueckenhausen, and research assistance by Fumihiko Okumura (all OECD Competition Division). Unclassified DAF/COMP/WP3(2020)1 3 Table of Contents Criminalisation of cartels and bid rigging conspiracies: a focus on custodial sentences ................ 2 1. Introduction ....................................................................................................................................... 5 1.1. Focus on hard core cartels and bid rigging ................................................................................... 6 1.2. Focus on custodial sentences ........................................................................................................ 7 2. Rationale for criminal sanctions against cartel offences ................................................................ 7 2.1. Economic deterrence theory ......................................................................................................... 8 2.1.1. “Traditional” economic analysis of criminal law ................................................................... 9 2.1.2. Is it possible to achieve (optimal) deterrence through criminal sanctions? ............................ 9 2.1.3. Actual costs of criminal enforcement cannot be disregarded ............................................... 10 2.2. Retribution theory ....................................................................................................................... 11 2.2.1. The need to address moral stigma ........................................................................................ 11 3. State of play ...................................................................................................................................... 13 3.1. Adoption and scope of criminal sanctions .................................................................................. 13 3.2. Statutory penalties ....................................................................................................................... 15 3.3. Actual enforcement ..................................................................................................................... 16 4. Implications of introducing criminal enforcement ....................................................................... 17 4.1. Defining criminal offences ......................................................................................................... 18 4.2. Individuals that can be held liable .............................................................................................. 18 4.3. Due process challenges ............................................................................................................... 19 4.4. Statutes of limitations ................................................................................................................. 20 4.5. What is required to prove a criminal offence .............................................................................. 20 4.5.1. The standard of proof ........................................................................................................... 20 4.5.2. Evidence of the infringement ............................................................................................... 20 4.5.3. Mens rea ............................................................................................................................... 21 4.6. Investigative and enforcement powers ........................................................................................ 21 4.6.1. Detection tools and investigative powers ............................................................................. 22 4.6.2. Institutional design and co-operation with the judiciary ...................................................... 24 4.7. Criminalisation, leniency and other forms of co-operation ........................................................ 28 4.7.1. The interplay between criminalisation and leniency ............................................................ 29 4.7.2. Criminal immunity ............................................................................................................... 31 4.7.3. Other implications of criminal immunity ............................................................................. 33 4.7.4. Plea agreements .................................................................................................................... 34 5. Enforcement and international co-operation in the context of criminalisation ......................... 36 5.1. How to co-ordinate among different jurisdictions ...................................................................... 36 5.1.1. The Mutual Legal Assistance Treaties and antitrust mutual assistance agreements ............ 37 Unclassified 4 DAF/COMP/WP3(2020)1 5.2. Prosecution of individuals overseas ............................................................................................ 39 6. Conclusion ........................................................................................................................................ 41 Endnotes............................................................................................................................................. 43 References ............................................................................................................................................ 52 Additional bibliography ..................................................................................................................... 59 Figures Figure 1. Average number of cartel decisions per agency by jurisdiction and by region, 2015-2018 .... 5 Figure 2. Serial collusion, 1989-2018 ..................................................................................................... 5 Boxes Box 1. Empirical studies........................................................................................................................ 12 Box 2. History of adoption and scope of antitrust criminal offences in the United States and the United Kingdom ...........................................................................................................................
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