Jeremy West, Feb 22, 2012
“In the last two decades, the world has seen the proliferation of effective leniency programs, ever-increasing sanctions for cartel offenses, and a growing global movement to hold individuals criminally accountable,” a top antitrust official recently observed. Statistics from several of the largest OECD economies do show dramatic growth in the fines imposed for corporate and (in some jurisdictions) individual cartel activity over the past twenty years. During the same time, prison sentences for cartel participants became more frequent and severe in the United States, while leniency programs and the criminalization of cartel violations spread to more countries. Yet cartels remain a serious and perhaps even a growing problem, as do recidivists.
These trends raise troubling questions. Competition enforcement agencies have been sending stronger and stronger messages to potential offenders for years. But is anyone receiving them? If they are, do they care?
In the past few years, a growing number of commentators have questioned the conventional wisdom that imposing ever-higher fines and stiffer prison sentences are the best ways to deter cartel activity. A controversy has also been brewing about whether competition authorities should reduce the fines levied on companies that had implemented genuine competition compliance programs but whose employees nevertheless participated in cartels. Wherever they stand on these issues, competition authorities will have to come to grips with the criticisms and either persuasively rebut them or adjust their approaches.
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