Edited by Ariel Ezrachi
Chapter 11: Criminal sanctions for cartels – the jury is still out
Close scrutiny and tough sanctioning of cartel conduct have been a feature of competition law and enforcement across the globe for the last decade. In particular, a growing number of jurisdictions have decided to criminalise this type of conduct. Underpinning these developments is the view, shared by governments and competition authorities worldwide, that cartels repre- sent a widespread and potent threat to competition and hence to domestic and global economic welfare. This economic rationale for a penal approach has been accompanied by strong moral rhetoric in the advocacy of competition officials; rhetoric invoking imagery of disease and war to condemn cartel conduct and to boost law reform and enforcement efforts. Consistent with this international trend, the Australian Parliament has introduced cartel offences attracting substantial criminal sanctions including a maximum ten-year term of imprisonment for individual offenders. The debate in relation to cartel criminalisation in Australia, as elsewhere, has been dominated by legal and economic policymakers, enforcement officials, practitioners and academics. In this sense, it is an elite debate, special to an ‘epistemic community’ connected with this highly specialised and technical area of the law. To some extent this is hardly surprising. Questions relating to the justification for and design of a regulatory regime in relation to cartel conduct are complex questions of economic policy, statutory drafting and enforcement process – they do not lend themselves readily to engagement with the views of the broader public.
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