The law against hard core cartel activity involving conspiracies such as price fixing, bid rigging and market sharing agreements between competitors is widely regarded as the centrepiece of competition law. It is a priority for both EU and UK competition authorities.

The Law of Cartels is an authoritative practitioner work offering practical advice for both lawyers advising companies and for company directors. In addition  to a comprehensive overview of the main aspects of the law, it offers guidance on dealing with cartel investigations by the competition authorities, implementing compliance programmes to reduce the risk of cartel activity taking place, and examines the options for companies accused of hard-core cartel activity.

This new edition has been extensively re-written to take on board changes in the law affecting the enforcement regimes at both the UK and EU level. It examines in detail recent developments such as

•  the increasing regulation of information exchange
•  the refinement of the concept of ‘hub and spoke’ cartels
•  the first criminal conviction under UK Cartel offence
•  revised EU fining guidelines and rising fines
•  and revised EU leniency guidelines.

Mark Jephcott Solicitor

Contributing Editor
Munesh Mahtani Solicitor

With a Foreword by Peter Freeman CBE QC, Chairman of the UK Competition Commission

Acknowledgments
Foreword
Introduction
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of European Materials
Table of OFT Material

Part 1
EU and UK Civil Law

• ‘Hard-Core’ Cartels in the EU and the UK
• The Civil Infringement under EU and UK Law
• Investigations by the Enforcement Agencies
• Fines
• Leniency
• Settlements
  

Part 2
Criminalisation of Cartels

• The Role of Criminal Enforcement
• Criminalisation of Cartels in the UK
  

Part 3
Practical Guidance in Relation to Cartels

• Dealing with the Anti-Cartel Enforcement Agencies and Global Cartels
• Dawn Raids
• Compliance
  

Appendix 1
European Commission Guidelines on the Method of Setting Fines
Imposed Pursuant to Article 23(2)(a) of Regulation No 1/2003

Appendix 2
European Commission Notice on Immunity from Fines and Reduction of
Fines in Cartel Cases

Appendix 3
OFT’s Guidance as to the Appropriate Amount of a Penalty

Appendix 4
Commission Notice on the Conduct of Settlement Procedures in view of
the Adoption of Decisions pursuant to Article 7 and Article 23 of
Council Regulation (EC) No 1/2003 in Cartel Cases

Index

Reviews of the first edition

“No serious practitioner in competition law should be without it and many general practitioners will want a copy behind their desk … an admirable work which brings an impressively clear and practical focus on this important area of law.”
European Competition Law Review

“… an excellent introduction to the law of cartels and deserves to be on the bookshelves of practitioners, academics and industrialists.”
International Company and Commercial Law Review

Law of Cartels
Second Edition
Foreword by Peter Freeman CBE, QC

 This book examines in some depth one part of the system of law known as competition law (on this side of the Atlantic) and antitrust law (on the other).  The law of (or more correctly against) cartels is often seen as the centrepiece of competition law and rightly so.  The idea, immortalised by Adam Smith, that people of the same trade will tend to conspire against the interests of the public, is a deep rooted one, and also much easier to understand than issues of monopolisation or even merger control.  So ‘hard core' cartel activity (price fixing or market sharing agreements between competitors) has to be proscribed by any self respecting competition law system.  Once it is, however, and once the prohibition is effectively enforced, ‘cartel' activity is displaced to less direct methods and the task of the authorities becomes more difficult, and perhaps less easily understood, as they pursue the more esoteric forms of anti-competitive collusion.

The second edition of the Law of Cartels documents how this process is evolving, particularly in the United Kingdom.  At the time of the first edition, some seven years ago, enforcement of cartel law (Chapter I of the Competition Act 1998) by the UK authorities had hardly begun, although the system had just been given a major boost by the introduction of the criminal cartel offence in the Enterprise Act 2002.  As the book makes clear, enforcement by the European Commission was, and continues to be, relatively prolific, with many of the major developments and initiatives taking place at EU level, although of direct relevance to UK business.  The rapid rise in levels of fines imposed, the development of settlement procedures and commitments and the increasing sophistication and ubiquity of leniency procedures all fall into this category.

So far as the UK goes, the results of seven years' enforcement activity are mixed.  On the one hand the Office of Fair Trading has undertaken some major cases, but has not always managed to carry these through to a final, sustainable, conclusion.  To be fair, this is partly because of the diversification of cartel activity already referred to and partly because of the fact that some of DG Comp's major cases also cover the UK.  But the relatively lower level of activity of OFT cartel enforcement, albeit focussed on cases of high impact, has been the subject of comment and is now one of the matters in discussion in the context of UK institutional reform.

On the criminal enforcement side the position is more perplexing.  No doubt the potential exposure to custodial sanctions remains a powerful disincentive for individual would-be offenders.  But the track record of clear-cut landmark cases - which are essential if the force of the law is to be maintained - is not impressive.  Again, what to do about this is an issue in the institutional reform debate.

Apart from these vexing questions around the criminal cartel offence, the main issues currently confronting both enforcers and the business community are the ever increasing levels of fines, and the resistance this may create, and the need to ensure that the institutions and processes by which decisions are made are sufficiently fair and robust.  We may expect both these aspects to be vigorously debated over the next few years.

The author is particularly well-qualified to comment on all these issues having served on the staff of the CAT and subsequently practised in major law firms.  He will hardly be allowed to rest on his laurels, however, as the pace of development of cartel enforcement activity is likely to require a third edition well before the next seven years are up.