Justifying Criminal Sanctions for Cartel Conduct: A Hard Case

Abstract

Competition authorities increasingly favour criminal sanctions for ‘hard core’ cartel conduct. However, the empirical case for criminalisation is thin. This article reports on ‘first of its kind’ empirical research that interrogates the key justifications offered by enforcers in support of criminal cartel law enforcement. Based on an Australian case-study, but with implications for other jurisdictions, the research findings raise serious questions about claims regarding the deterrence impact of criminal sanctions and the inherent criminality of cartel conduct. The implications for the criminalisation ‘movement’ are far-reaching. Specific implications for the advocacy and outreach strategies of competition authorities are discussed, with particular emphasis on how such strategies should be formulated so as to maximise their value, not just in securing deterrence, but ultimately in building compliance.