The Cartel Offence: Defining an Appropriate “Moral Space”

"The debate within competition law regarding criminalisation comes from the conviction that increased individual deterrence would increase the effectiveness of enforcement regimes in the struggle against cartels. This is essentially a “forward looking” or utilitarian conception of the law. Traditional criminal law tends not to have that focus. It is often “backward looking” in that it seeks to justify what is criminal on the basis that the behaviour is wrong according to a societal view of justice. Behaviour will be challenged if it deserves moral opprobrium and/or clearly causes societal harm.

In this paper I wish to take a “backward looking” approach to questions surrounding the design of the cartel offence and try to identify where I perceive its fundamental disconnect with the traditions of criminal law to lie. It is also a good time to try and assess whether the UK coalition government’s suggestions for reform of the cartel offence are in any way suited to address those problems."