Wednesday, April 10, 2013
The Competition Act 2002, ten years later: lessons from the Irish experience of prosecuting cartels as criminal offences
Posted by D. Daniel Sokol
Terry Calvani (Freshfields) and Kaethe M. Carl (Freshfields) analyze The Competition Act 2002, ten years later: lessons from the Irish experience of prosecuting cartels as criminal offences.
ABSTRACT: A decade has passed since the Irish Competition Act, 2002, was signed into law and the cartel enforcement regime in Ireland began in earnest. Preventing hard-core cartel behaviour has throughout this period remained the Irish Competition Authority’s top enforcement priority, yet the achievements of the Authority have been mixed. The article traces the evolution of the criminal cartel provisions of the Irish competition law and the enforcement mechanisms available to the Authority. The article then assesses the Authority’s enforcement record and compares the Irish experience with other cartel enforcement regimes. Although the Authority has secured multiple convictions, Irish judges have been unwilling to commit a single convicted individual to prison. The existence of sufficient statutory sanctions is irrelevant absent a willingness of Irish judges to impose them, and the absence of meaningful sanctions makes the Cartel Immunity Programme less successful because the benefit of immunity is reduced. The article discusses the Authority’s case selection and suggests changes that would make the Authority more effective. It also advocates legislation that strengthens whistleblower protections, proscribes perjury as an indictable offence, and continues to increase the Authority’s cartel resources.