Cartel Sentencing in Ireland: Criminal Standards of Proof, But Civil Sanctions

Gorecki, Paul (2018): Cartel Sentencing in Ireland: Criminal Standards of Proof, But Civil Sanctions.

Abstract

On 20 June 2018 the Court of Appeal in Ireland’s first bid-rigging case determined that the €7,500 fine imposed by the lower court on a corporate officer was unduly lenient. It was increased to €45,000. The €10,000 fine on the undertaking was not varied. The effect of the Court’s judgment, if followed in future cartel cases, is that for cartels in Ireland the criminal standard of proof remains, but the only sanction is a fine, what in many EU jurisdictions is regarded as a civil sanction. No gaol sentence was imposed and no justification provided. This is likely to undermine the effectiveness of the Cartel Immunity Programme, a vital tool for cartel detection and prosecution. Fines based on the cartel induced price rise are not only seriously underestimated by the Court, by a factor of around five, but imposed on the wrong target (i.e. the corporate officer not the undertaking). Ignorance as a defence has been revived. Victims are blamed. Bid-rigging cartels appear – unjustifiably - to be of lesser importance than other types of hard core cartels. Major arguments made by the Director of Public Prosecutions in the appeal were simply ignored by the Court with no explanation offered. The prospect for competition law enforcement in Ireland is grim, particularly with respect to bid-rigging cartels which the Competition and Consumer Protection Commission has made an enforcement priority.

• Item Type: MPRA Paper
• Language: English
• Keywords: Bid-rigging cartel; commercial flooring; Competition Act 2002; unduly lenient; sentencing competition law; cartels.
• Subjects: D - Microeconomics > D4 - Market Structure, Pricing, and Design > D43 - Oligopoly and Other Forms of Market Imperfection; K - Law and Economics > K2 - Regulation and Business Law > K21 - Antitrust Law; L - Industrial Organization > L1 - Market Structure, Firm Strategy, and Market Performance > L13 - Oligopoly and Other Imperfect Markets; L - Industrial Organization > L4 - Antitrust Issues and Policies > L41 - Monopolization ; Horizontal Anticompetitive Practices

References

Andrews, Philip, Paul Gorecki & David McFadden (2015) Modern Irish Competition Law. The Netherlands: Kluwer Law International.

Combe, Emmanuel, Constance Monnier & Renaud Legal (2008) Cartels: Estimating the Probability of Getting Caught in the European Union. Bruges European Economic Research Paper 12: Bruges: College of Europe.

Competition & Consumer Protection Commission (CCPC) (2016) “CCPC Publishes First Annual Report.” Press Release. 14 August.

Competition & Consumer Protection Commission (CCPC) (2017) Annual Report 1 January 2016-31 December 2016. Dublin: CCPC.

Competition & Consumer Protection Commission (CCPC) (2018) Annual Report 2017. Dublin: CCPC.

Connor, John (2014) “Cartel Overcharges.” Research in Law and Economics. Vol. 26, pp. 249-287.

Crean Mosaics (2011) Company Profile. Charlestown, Co. Mayo: the Company.

Denham, Susan (2006) “Proposal for a Court of Appeal.” Judicial Studies Institute Journal, Vol. 6, No. 1, pp. 1-14.

Director of Public Prosecutions (DPP) (2016) Guidelines for Prosecutors. 4th Edition. Dublin: DPP. https://www.dppireland.ie/filestore/documents/Guidelines_for_Prosecutors_[4th_Edition_-_October_2016].pdf

European Commission (2006) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. OJ C210/2.

Froeb, Luke, Robert A Koyak & Gregory J Werden (1993) “What is the Effect of Bid-rigging on Prices?” Economic Letters, Vol. 42, pp. 419-422.

Gallagher, Conor (2018) “Judges Set Down Guidelines for Burglary Cases.” Irish Times. 1 May.

Gorecki, Paul K (2017a) Sentencing in Ireland’s First Bid-rigging Cartel Case: An Appraisal. MPRA Paper 80787. Munich: RePEc

Gorecki, Paul K (2017b) “Sentencing in Ireland’s First Bid-rigging Cartel Case: Unduly Lenient?” Kluwer Competition Law Blog. 21 August.

Gorecki, Paul K (2017c) “Sentencing in Ireland’s First Bid-rigging Cartel Case: Serious Under Enforcement?” European Competition Law Review. Vol. 38, No. 12, pp. 567-578.

Hviid, Morten & Andreas Stephan (2009) “The Graphite Electrodes Cartel: Fines Which Deter?” in Bruce Lyons (ed) (2009) Cases in European Competition Policy: the Economic Analysis. Cambridge: Cambridge University Press, pp. 137-158.

Martin, Stephen (2010) Industrial Organization in Context. Oxford: Oxford University Press.

McFadden, David (2013) The Private Enforcement of Competition Law in Ireland. Oxford: Hart Publishing.

O’Malley, Tom (2014) The Role of the Prosecution at Sentencing in the Aftermath of People (DPP) v Z (2014). Paper presented to the 15th Annual National Prosecutors’ Conference, 23 October. https://www.dppireland.ie/filestore/documents/PAPER_-_Tom_OMalley_BL_-_2014.10.18.pdf

Organization for Economic Cooperation (OECD) (2009) Guidelines for Fighting Bid-rigging in Public Procurement. Paris: OECD.

United States Sentencing Commission (2011) 2011 Federal US Sentencing Guidelines Manual. Washington DC: the Commission.

Werden, Gregory J (2009) “Sanctioning Cartel Activity: Let the Punishment Fit the Crime,” European Competition Journal. Vol. 5, pp. 19-36.

Whish, Richard & David Bailey (2012) Competition Law. 7th Edition. Oxford: Oxford University Press.

Working Group on a Court of Appeal (2009) Report. Dublin: Stationery Office.