Friday, February 19, 2010
Posted by D. Daniel Sokol
Marc Hertogh, University of Groningen - Faculty of Law has written on Crime and Custom in the Dutch Construction Industry.
ABSTRACT: In 2001, the construction industry in the Netherlands was at the heart of many public and political debates. A television documentary suggested that all major construction companies were involved in an illegal clearing system that colluded in price offers for public works. After this TV program, the Dutch parliament decided to conduct a parliamentary enquiry which showed a widespread use of cartels and structural ‘bid rigging’ within the Dutch construction industry. Despite the fact that the clearing system of the Dutch construction industry was prohibited by the European Commission in 1992 and by the 1998 Dutch Competition Act, Dutch builders continued their illegal activities as if nothing had changed. This case raises several important questions. Why were these practices so widespread in the Dutch construction industry? Why did Dutch contractors continue these practices even after they were made illegal? And – in more general terms – what does this case tell us about the interplay between state-regulation and self-regulation? Most previous studies focus on the lack of compliance in the Dutch construction industry with antitrust law. By contrast, this paper uses a ‘constitutive’ approach. Rather than focusing on legal compliance, I will use the theoretical framework of legal consciousness to focus on people’s understandings of law. Thus, rather than asking how much does law matter, this paper asks: how does antitrust law matter in the Dutch construction industry?