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Working Party No. 3 on Co-Operation and Enforcement Organisation for Economic Co-operation and Development DAF/COMP/WP3(2020)5 Unclassified English - Or. English 14 September 2020 DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS COMPETITION COMMITTEE Cancels & replaces the same document of 23 April 2020 Working Party No. 3 on Co-operation and Enforcement Cartel Criminalization and the Challenge of ‘Moral Wrongfulness’ By Peter Whelan 9 June 2020 This paper by Peter Whelan was submitted by the author as part of the background material in support of their presentation at Item 1 of the 131st meeting of Working Party 3 on Co-operation and Enforcement on 9 June 2020. This paper was not commissioned nor vetted by the OECD Secretariat; the opinions expressed and arguments employed herein are exclusively those of the author and do not necessarily reflect the official views of the Organisation or of the governments of its member countries. The document is available in PDF only. More documents related to this discussion can be found at http://www.oecd.org/daf/competition/criminalisation-of-cartels-and-bid-rigging-conspiracies.htm Ms Sabine ZIGELSKI [Email: [email protected]] JT03465237 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)5 CARTEL CRIMINALIZATION AND THE CHALLENGE OF ‘MORAL WRONGFULNESS’ Unclassified Oxford Journal of Legal Studies, Vol. 33, No. 3 (2013), pp. 535–561 doi:10.1093/ojls/gqt010 Published Advance Access April 29, 2013 Cartel Criminalization and the Challenge of ‘Moral Wrongfulness’ Peter Whelan* Abstract—There is considerable debate at present, particularly in the Member Downloaded from 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 http://ojls.oxfordjournals.org/ 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. by guest on January 5, 2014 Keywords: anti-cartel enforcement, competition law, criminal antitrust sanctions, deterrence, moral wrongfulness, retribution 1. Introduction ‘Cartel activity’ can be conceptualized as the making or implementing of an anticompetitive agreement, concerted practice or arrangement by competitors to fix prices, make rigged bids, establish output restrictions or divide markets by allocating customers, suppliers, territories or lines of commerce.1 It is widely accepted that cartel activity reduces competition in the marketplace to the detriment of consumers; it is therefore prohibited by all of the national competition laws of the EU Member States. Furthermore, if it affects trade * Senior Lecturer in Law, UEA Law School, and Faculty Member, ESRC Centre for Competition Policy, University of East Anglia. Email: [email protected]. 1 Organization for Economic Cooperation and Development (OECD), ‘Recommendation of the OECD Council Concerning Effective Action against Hard Core Cartels’ (25 March 1998) C(98)35/final, para 2(a). ß The Author 2013. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] 536 Oxford Journal of Legal Studies VOL. 33 between the EU Member States, cartel activity is prohibited in EU law by Article 101(1) of the Treaty on the Functioning of the European Union (TFEU). This provision is enforced by the European Commission (‘the Commission’) and the national competition authorities and courts of the EU Member States.2 In its cartel law enforcement role, the Commission imposes only administrative fines on undertakings; it cannot inflict criminal punishment (which, for present purposes, should be taken to mean a custodial sentence) on individuals.3 Traditionally, within Europe, EU cartel law enforcement at national level has tended to avoid the employment of personal criminal punishment.4 This tradition notwithstanding, recently there has been increas- ing debate concerning the imprisonment of individual cartelists by the EU Member States.5 Importantly, this ‘European antitrust criminalization debate’ is more than a mere academic exercise: some European countries, such as the Downloaded from UK, Ireland, Estonia and (in a limited manner) Germany, have introduced and imposed personal criminal cartel sanctions, while others (such as the Netherlands and Sweden) have contemplated their introduction in order to secure the effective enforcement of Article 101(1) TFEU and their national equivalents. These developments are consistent with worldwide trends in http://ojls.oxfordjournals.org/ competition law enforcement, as ‘countries in virtually every region of the world are criminalizing cartel offences’.6 The employment of such criminal sanctions within the context of anti-cartel enforcement presents a number of crucial challenges that need to be met if the underlying enforcement objectives are to be achieved in practice without violating prevailing legal norms or undermining the legitimacy of the relevant antitrust regime.7 Above all, given the severe consequences of a custodial sentence, the employment of criminal antitrust punishment must be justifiable in principle: one by guest on January 5, 2014 must have a robust normative framework rationalizing the existence of criminal cartel sanctions. Such a framework should be constructed with recognized theories of criminal punishment, employing either a single criminal punishment theory as the ultimate rationale for criminal cartel sanctions8 or a combination of different punishment theories, each performing its own distinct justificatory role 2 See Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L 1/1. 3 See ibid art 23(5). 4 See C Harding, ‘Business Collusion as a Criminological Phenomenon: Exploring the Global Criminalisation of Business Cartels’ (2006) 14 Critical Criminology 181. 5 See generally C Beaton-Wells and A Ezrachi (eds), Criminalising Cartels: Critical Studies of an International Regulatory Movement (Hart Publishing 2011); K Cseres, MP Schinkel and F Vogelaar, Criminalization of Competition Law Enforcement: Economic and Legal Implications for the EU Member States (Edward Elgar Publishing 2006). 6 G Shaffer and N Nesbitt, ‘Criminalizing Cartels: A Global Trend?’ (2011) U Minnesota Law School, Legal Studies Research Paper Series No 11–26, 1. 7 See P Whelan, The Criminalization of European Cartel Enforcement: Theoretical, Legal, and Practical Challenges (OUP forthcoming). 8 See T Calvani, ‘Enforcement of Cartel Law in Ireland’ in B Hawk (ed), Annual Proceedings of the Fordham Corporate Law Institute (Juris Publishing Inc 1999); W Wils, ‘Is Criminalization of EU Competition Law the Answer?’ (2005) 28 World Competition 17. AUTUMN 2013 Cartel Criminalization and ‘Moral Wrongfulness’ 537 within the framework (eg justifying the existence of criminal punishment per se or its distribution in a given cartel scenario).9 Some punishment theories have more potential for inclusion in a cartel criminalization framework than others. Clearly, both ‘rehabilitation through incarceration’ and ‘incapacitation through incarceration’ are inappropriate in the antitrust context.10 The concept of ‘rehabilitation through incarceration’— with its focus on those recividivist individuals who, after being punished, are, by their very nature, still incapable of adhering to the law—is of limited relevance when one is considering the punishment of educated corporate decision-makers who are capable, one assumes, of learning from their mistakes.11 Unlike other types of crime—drugs-related crime, for example— the actions of such educated decision-makers cannot be easily perceived as being symptomatic of a wider social disease that needs to be treated.12 For its Downloaded from part, ‘incapacitation through incarceration’ is inappropriate as we do not wish to put cartelists (who, their cartel activity notwithstanding, are usually productive, law-abiding members of society) behind bars merely to prevent them from being physically able to cartelize again in future. If one wished physically to prevent a given individual from engaging in cartel activity, one http://ojls.oxfordjournals.org/ could use other, far less severe/costly methods, such as court orders preventing an individual from being involved in the management of a business.13 The theories of deterrence and retribution, by contrast, are of more obvious relevance in the debate
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