Criminalisation of cartels and bid rigging conspiracies: a focus on custodial sentences

Notwithstanding the increased adoption of criminal sanctions, there is no international consensus on criminalisation of cartels, and in particular on custodial sentences against individuals. This paper aims at providing guidance on the benefits and challenges of criminal enforcement, focussing on custodial sentences.
It describes the economic deterrence theory and the retribution theory that have emerged in the criminalisation debate and summarises the main concerns raised in relation to each theory. It offers an overview of criminalisation trends across jurisdictions, and it identifies the key institutional and procedural questions to be carefully assessed when a jurisdiction considers the criminalisation of cartels. It also discusses the benefits and main challenges for international co-operation between jurisdictions that pursue criminal enforcement and those that focus on administrative/civil enforcement, and the effects of criminalisation on leniency programmes. A case can be made in favour of criminalisation of antitrust enforcement against cartels and bid rigging offences, in particular in favour of custodial sentences against individuals, to complement sanctions against companies. However, not all enforcement regimes are currently built for successful criminalisation. The paper concludes that jurisdictions should gradually build institutions before introducing criminalisation, and that each jurisdiction should determine the right mix of sanctions, depending – among other factors – on social norms, the existing legal framework, resources of competition agencies and the relationship between the competition agency and prosecution authorities. The introduction of criminal enforcement also requires significant advocacy efforts directed at key institutional stakeholders and the general public.