“Considered ‘a go-to firm for criminal competition matters’.”
The Enterprise Act 2002 introduced a criminal offence of cartel behaviour which includes price fixing, limiting supplies or production, bid-rigging and market-sharing arrangements. The offence can only be committed by individuals (not companies) and carries a maximum sentence of five years’ imprisonment.
The offence originally required the prosecution to prove that the individual had acted dishonestly in relation to the cartel behaviour. However, the Act was amended with effect from April 2014 to remove the requirement to prove dishonesty (regarded by the Competition and Markets Authority (“CMA”) as an impediment to the successful prosecution of the offence), with the consequence that there may well be an increase in the number of criminal investigations and prosecutions of this offence.
The risk of personal criminal liability for directors and employees involved in cartel behaviour means it is vital that the individual takes specialist, and independent, criminal law advice at the very earliest opportunity. Companies involved in the cartel behaviour are likely to be subject to concurrent civil investigation by the CMA and BCL regularly works alongside a company’s competition lawyers when defending an individual in this situation, particularly where the company is considering co-operation with the CMA (for example as part of a leniency application).
Many cartels will have an international element, with investigations pursued in more than one country; the US Department of Justice is particularly prominent in the investigation of international cartels. In these cross-border investigations, it is vital that local legal advice is obtained including in relation to the risk of extradition and mutual legal assistance.
BCL has gained experience over many years in defending investigations and prosecutions for cartel offences. This includes dealing with dawn raids, internal company investigations, and representing individuals at interviews, whether they be voluntary, under compulsion or under caution. Our cartel defence practice, and our wider business crime and regulation practice, frequently involves an international dimension, and our experience in extradition matters and in working with and co-ordinating teams of foreign lawyers is vital in responding to such investigations.