Failure and Success
Chapter 7: Conclusion
It is not novel to argue that the problem with the UK’s Cartel Offence, as originally framed, lies not in the specific language of the legislation, but with the deliberately constructed separation between the civil regime enshrined in the Competition Act 1998 and in the TFEU and the criminal regime set out in s 188 of the Enterprise Act 2002. Before the EA02 was introduced the Competition Law Association (‘CLA’) had argued, in its response to the Government consultation process, that there should be links between the civil and criminal regimes. As noted by Parkinson, the CLA ‘thought that the government’s approach would lead to unnecessary complication between the position of an individual defendant and a company which was the subject of an investigation by the competition law authorities’. The Opposition proposed an amendment which would have required the prosecution to prove that the defendant knew that their act would be a breach of the CA98 or art 101 TFEU. This amendment was probably not the right way forward. It is unfortunate that it is difficult to make an assessment of the operation of the criminal enforcement regime in the UK in isolation. The Office of Fair Trading, responsible for both criminal and civil enforcement until such time as criminal enforcement responsibility is moved to another agency, has been subject, properly, to serious criticism in recent years. It is hard to escape the conclusion that the OFT has, at best, struggled, or at worse failed, in its civil enforcement since the CA98 took effect on March 1, 2000.
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