Companies should expect the OFT to take an aggressive approach to cartel investigations, say Gary Summers and Gerallt Owen
The global approach of multi-jurisdictional US-led law enforcement is evident in cartels. Cartels—or antitrust in the US—take many different forms, but essentially consist of two or more commercial undertakings entering into anti-competitive/collusive arrangements. Evidenced by a secret agreement or arrangement, the intention of those taking part is to restrict competition by fixing prices, restricting output, dividing up the market, or blocking competition from third parties or new entrants to the market.
CRIMINAL CARTEL OFFENCE
In the UK, the Enterprise Act 2002 (EnA 2002), s 188 introduced a statutory criminal cartel offence. The offence and the related powers of the Serious Fraud Office (SFO) and/or Office of Fair Trading (OFT) to investigate the offence are provided for. It is envisaged that the SFO will have the option of being the lead investigator.
The criminal cartel offence can only be committed by individuals, and not by undertakings, and the offence is punishable up to a maximum of five years’ imprisonment. However, alleged illegal cartel conduct predating EnA
