Commentary on Sections Cartel Offence
401.Sections 188-202 provide for a criminal offence for individuals who dishonestly engage in cartel agreements (‘the criminal offence’). The criminal offence will operate alongside the existing regime that imposes civil sanctions on undertakings that breach the competition provisions of CA 1998. The civil regime applies to a much wider range of anti-competitive activities than are targeted by the criminal offence.
402.The proposal to introduce criminal sanctions as a deterrent to individuals engaging in cartel activity was included in the July 2001 White Paper, ‘Productivity and Enterprise: A World Class Competition Regime’, and views were invited from consultees on the general concept and on a number of detailed aspects of the proposal.
403.In the light of responses to the consultation and of contacts with the authorities likely to be responsible for the new offence, the Government announced in November 2001 further details of its proposals for the introduction of the criminal offence, as follows:
	the definition of the offence to be based on individuals having dishonestly entered into horizontal agreements (i.e. agreements at the same level in the supply chain) to fix prices, share markets, limit production or rig bids;
	the investigation to be carried out by OFT investigators under a case controller from the Serious Fraud Office ('SFO'); appropriate investigatory powers to be made available to the OFT;
	the OFT to be able to issue ‘no-action letters’ to protect informants from prosecution;
	for investigations that lead to prosecution, the SFO to be the lead prosecutor; the OFT also to be a named prosecutor;
	the offence to be triable in either the Magistrates’ Courts or the Crown Courts; the maximum penalty for the offence to be five years’ imprisonment; fines to be available in addition or as an alternative.
404.Sections 188-202 make the necessary legislative provisions to implement the criminal offence.