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An empirical evaluation of the normative justifications for cartel criminalisation

  • Andreas Stephan (a1)
Abstract

A growing number of jurisdictions treat ‘hardcore’ cartel conduct as crime, in the belief that the threat of incarceration is necessary for deterrence. The significant economic harm caused by cartels is generally undisputed, but there is disagreement over whether cartel conduct is morally offensive enough to justify criminalisation. Critics argue that it is another example of ‘over-criminalisation’, seeking to regulate an activity that is morally ambiguous. Those in favour have sought to formulate normative justifications for why cartel conduct should be crime. Many of these rely on the assumption that members of society expect markets to be competitive and believe cartels are undesirable. This paper makes a significant contribution by testing this question empirically. Public surveys from the UK, Germany, Italy and the US are used to critically analyse the extent to which normative justifications for cartel conduct have empirical backing.

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Copyright
Legal Studies published by John Wiley & Sons Ltd on behalf of Society of Legal Scholars. This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited.(http://creativecommons.org/licenses/by/4.0/)
Corresponding author
Andreas Stephan, UEA Law School and Centre for Competition Policy, University of East Anglia, Norwich NR4 7TJ, UK. Email: a.stephan@uea.ac.uk
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The support of the Economic and Social Research Council (UK) is gratefully acknowledged. The usual disclaimer applies.

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1. See OECD ‘Recommendation of the Council concerning effective action against hard core cartels’ C(98)35/FINAL (May 1998).

2. UNCTAD ‘The impact of cartels on the poor’ (24 July 2013), available at http://unctad.org/meetings/en/SessionalDocuments/ciclpd24rev1_en.pdf (accessed 20 December 2016).

3. World Bank Breaking Down Barriers: Unlocking Africa's Potential Through Vigorous Competition Policy (June 2016), available at http://documents.worldbank.org/curated/en/\243171467232051787/pdf/106717-REVISED-PUBLIC-Africa-Competition-Report-FINAL. pdf (accessed 20 December 2016), at iii.

4. For example, the US Department of Justice estimated that in the period 1997-2000, just the international cartels that were detected and prosecuted affected in excess of US$10 billion in US commerce. Some of these achieved price increases as great as 70% during some periods of their duration. See JM Griffin, speech at Criminal Practice and Procedure Committee, American Bar Association Section of Antitrust Law, 49th Annual Spring Meeting, Washington, DC (28 March 2001), available at https://www.justice.gov/atr/speech/criminal-cartel-enforcement-statusreports (accessed 20 December 2016).

5. JM Connor and Y Bolotova ‘Cartel overcharges: survey and meta-analysis’ (March 2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=788884 (accessed 20 December 2016); OECD ‘Hard core cartels - harm and effective sanctions’, Policy Brief (May 2002), available at http://www.oecd.org/competition/cartels/21552797.pdf (accessed 20 December 2016); M Boyer and R Kotchoni ‘The econometrics of cartel overcharges’ (2011) Montreal Scientific Series, available at https://www.cirano.qc.ca/pdf/publication/2011s-35.pdf (accessed 20 December 2016).

6. For a discussion of the historical treatment of cartels and the influence of the US, see Harding, C and Joshua, J Regulating Cartels in Europe (Oxford: Oxford University Press, 2nd edn, 2010), ss I, II. Even in the US, the US National Industry Recovery Act 1933 effectively legalised cartels in the wake of the Great Depression, but has since been shown to have prolonged economic recovery rather than achieving its stated aim of promoting stability. See HL Cole and LE Ohanian ‘New Deal policies and the persistence of the Great Depression: a general equilibrium analysis’ (2004) 112(4) J Pol Econ 779-816.

7. See Sokol, DD and Stephan, APrioritizing cartel enforcement in developing world competition agencies’ in Sokol, DD, Cheng, TK and Lianos, I (eds) Competition Law and Development (Stanford, CA: Stanford University Press, 2013).

8. European Commission - press release ‘Antitrust: Commission fines truck producers €2.93 billion for participating in a cartel’ (19 July 2016) IP/16/2582.

9. See eg J Almunia (Vice President of the European Commission responsible for Competition Policy) ‘Fighting against cartels: a priority for the present and for the future’, speech, Brussels (3 April 2014), available at http://europa.eu/rapid/press-release_SPEECH-14-281_en.htm (accessed 20 December 2016); Office of Fair Trading (OFT) Cartels and the Competition Act 1998 (2005) OFT435: ‘… not only will members of the cartel be penalised, but a very strong deterrent message will be sent to other businesses that may be contemplating cartel activity’ (p 10).

10. Stenuit v France [1992] ECC 401, Case C-272/09P; Engel v Netherlands (1979-80) 1 EHRR 647.

11. Baker, DIPunishment for cartel participants in the US: a special model?’ in Beaton-Wells, C and Ezrachi, A (eds) Criminalising Cartels: Critical Studies of an International Regulatory Movement (Oxford: Hart Publishing, 2011).

12. See eg F Wagner-von Papp ‘What if all bid riggers went to prison and nobody noticed? Criminal antitrust law enforcement in Germany’ in Beaton-Wells and Ezrachi, above n11.

13. See OECD Annual Report on Competition Policy Developments in Finland (16-18 June 2015), available at http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP/AR(2015)14&docLanguage=En (accessed 20 December 2016). Leniency is a defining characteristic of modern cartel enforcement. Immunity from fines is offered to the first firm to self-report an infringement. Around two thirds of cartels in Europe are uncovered thanks to this tool.

14. Ireland is probably the most successful of these, although no prosecutions there have yet resulted in a custodial sentence: T Calvani and KM Carl ‘The Competition Act 2002, ten years later: lessons from the Irish experience of prosecuting cartels as criminal offences’ (2013) 1(2) J Antitrust Enforcement 296; also see generally Furse, M The Criminal Law of Competition in the UK and in the US (Cheltenham: Edward Elgar, 2012).

15. See A Stephan ‘How dishonesty killed the cartel offence’ (2011) 6 Crim L Rev 446-55.

16. Department of Trade and Industry (DTI) White Paper A World Class Competition Regime (CM 5233) 2001, para 7.33; see also Joint Treasury/DTI Report The UK's Competition Regime (2001); OFT ‘Proposed criminalization of cartels in the UK’, a report prepared for the OFT by Sir Anthony Hammond KCB QC and Roy Penrose OBE QPM (November 2001) 1.4.

17. OFT Drivers of Compliance and Non-compliance with Competition Law: An OFT Report (May 2010) OFT 1227.

18. Criminal sanctions were introduced by the Competition Act 1996, with important reforms made under the Competition Act 2002. For a discussion of why Ireland criminalised and the background, see P Massey and JD Cooke ‘Competition offences in Ireland: the regime and its results’ in Beaton-Wells and Ezrachi, above n 11, ch 5.

19. This was originally recommended by the Australian Competition and Consumer Commission: ACCC Submission to the Trade Practices Act Review (Public Submission No 50, 2002) 35. It persuaded the Dawson Committee to recommend criminalisation: Trade Practices Act Review Committee Review of the Competition Provisions of the Trade Practices Act (Commonwealth of Australia, Canberra, report dated 31 January 2003, released 16 April 2003). For discussion, see C Beaton-Wells and B Fisse ‘Criminalising serious cartel conduct: issues of law and policy’ (2008) 36 Austral Bus L Rev 166.

20. EU/IMF Programme of Financial Support for Ireland (16 December 2010); A Stephan ‘Will IMF requirement that Ireland strengthen competition law sanctions actually make a difference? Competition Policy Blog (31 October 2011), available at https://competitionpolicy.wordpress.com/ (accessed 20 December 2016).

21. J Flynn ‘Criminal sanctions under state and federal antitrust laws’ (1967) 45 Tex L Rev 1301 at 1315, discussed by GJ Werden ‘Sanctioning cartel activity: let the punishment fit the crime’ (2009) 5(1) Eur Competition J 19.

22. Examples of this include Klein's famous observation that cartels amount to ‘theft by well dressed thieves’; JI Klein ‘The war against international cartels: lessons from the battlefront’, speech at Fordham Corporate Law Institute (14 October 1999); and the New York and the US Supreme Court's description of cartels as ‘the supreme evil of Antitrust’ Verizon Communications v Law Offices of Curtis v Trinko (2004) 540 US 398,408. Some have noted an assumption by the ACCC that members of the public saw cartels as equivalent to theft, although there was no clear evidence of this at the time. See C Beaton-Wells and C Parker ‘Justifying criminal sanctions for cartel conduct: a hard case’ (2013) 1(1) J Antitrust Enforcement 198; C Beaton-Wells and F Haines ‘Making cartel conduct criminal: a case study of ambiguity in controlling business behaviour’ (2009) 42(2) Austral & NZ J Crim 218.

23. The economic paradigm of deterrence was expressed in the seminal article: G Becker ‘Crime and punishment: an economic approach’ (1968) 76 J Pol Econ 169.

24. OECD Cartels: Sanctions Against Individuals (Paris: OECD Competition Committee, 2003).

25. A Stephan ‘The bankruptcy wildcard in cartel cases’ (August 2006) J Bus L 511-534.

26. This figure includes immunity applicants, whose fine was zero, but who nevertheless were involved in the cartel and were subject to an infringement decision. The data is taken from statistics published on the website of the European Commission: http://ec.europa.eu/competition/cartels/statistics/statistics.pdf (accessed 20 December 2016).

27. JM Connor and RH Lande ‘Cartel overcharges and optimal cartel fines’ in Issues in Competition Law and Policy vol 3 (Chicago: ABA Section of Antitrust Law, 2008) ch 88, pp 2203-2218; JM Connor ‘Price fixing overcharges: revised 3rd edition’, unpublished manuscript (February 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2400780 (accessed 20 December 2016); F Smuda ‘Cartel overcharges and the deterrent effect of EU competition law’ ZEW Discussion Paper no 12-050 (July 2012), available at ftp://ftp.zew.de/pub/zew-docs/dp/dp12050.pdf (accessed 20 December 2016); Y Bolotova ‘Cartel overcharges: an empirical analysis’ (2006) unpublished manuscript, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931211 (accessed 20 December 2016); Y Bolotova, JM Connor and DJ Miller ‘Factors influencing the magnitude of cartel overcharges: an empirical analysis of the US market’ (2009) 5(2) J Competition L & Econ 361-381; M Boyer and R Kotchoni ‘How much do cartels overcharge?’ (2015) 47(2) Rev Industrial Org 119-153; OECD Hard Core Cartels (Paris: OECD, 2000), available at http://www.oecd.org/competition/cartels/2752129.pdf (accessed 20 December 2016).

28. There are a number of studies that concur estimates in this region: PG Bryant and EW Eckard ‘Price fixing: the probability of getting caught’ (1991) 73(3) Rev Econ & Stat 429-445; E Combe and C Monnier ‘Fines against hard core cartels in Europe: the myth of over enforcement’ (2011) 56 Antitrust Bull 235; PL Ormosi ‘A tip of the iceberg? The probability of catching cartels’ (2014) 29(4) J Appl Econometrics 549-566. This is not an exhaustive list.

29. AJ Ashworth ‘Is the criminal law a lost cause?’ (2000) 116 L Q Rev 225; AJ Ashworth and L Zedner ‘Defending the criminal law: reflections on the changing character of crime, procedure and sanctions’ (2008) 2 Crim L & Phil 21; Husak, D Overcriminalization and the Limits of Criminal Law (New York: Oxford University Press, 2009).

30. A Jones and R Williams ‘The UK response to the global effort against cartels: is criminalization really the solution?’ (2014) 2(1) J Antitrust Enforcement 100-125 at 102.

31. See discussion in P Whelan ‘Cartel criminalization and the challenge of “moral wrongfulness”’ (2013) 33(3) Oxford J Legal Stud 535-561 at 541; and P Whelan ‘Morality and its restraining influence on European antitrust criminalisation’ [2009] TCLR 40.

32. B Wardhaugh ‘a normative approach to the criminalisation of cartel activity’ (2012) 32 Legal Stud 369.

33. Whelan, P The Criminalization of European Cartel Enforcement: Theoretical, Legal and Practical Challenges (Oxford: Oxford University Press, 2014).

34. S Green ‘Why it's a crime to tear a tag off a mattress: overcriminalization and the moral content of regulatory offences’ (1997) 46 Emory L J 1535 at 1536, citing FA Allen ‘The morality of means: three problems in criminal sanctions’ (1981) 42 U Pitt L Rev 737 at 738; and FB Sayre ‘Public welfare offenses’ (1933) 3(55) Colum L Rev 79-80. See also the difficulties associated with analysing criminalisation, discussed in N Lacey ‘Historicising criminalisation: conceptual and empirical issues’ (2009) 72(6) Mod L Rev 936-960.

35. ‘Blair's “frenzied law making”: a new offence for every day spent in office’ The Independent 15 August 2006; for an empirical study of criminalization during this period, see J Chalmers and F Leverick ‘Tracking the creation of criminal offences’ (2013) Crim L Rev 543-560.

36. Jones and Williams, above n 30, p 108.

37. See eg R White ‘Civil penalties: oxymoron, chimera and stealth sanction’ (2010) 126 L Q Rev 593.

38. A Jones and R Williams ‘The UK response to the global effort against cartels: is criminalization really the solution?’ (2014) 2(1) J Antitrust Enforcement 100-125 at 102.

39. Ibid; for examples, see A Ashworth ‘Conceptions of overcriminalization’ (2008) 5 Ohio St J Crim L 407-25 at 407-09; Packer, H The Limits of the Criminal Sanction (Oxford: Oxford University Press, 1968) p 359 ; F Sayre ‘Public welfare offences’ (1933) 33 Colum L Rev 55.

40. See J Coffee ‘Does “unlawful” mean “criminal”? Reflections on the disappearing tort/crime distinction in American law' (1991) 71 Boston U L Rev 193; discussed in Jones and Williams, above n 30, p 109; see also Ashworth and Zedner, above n 29.

41. See Napp Pharmaceutical Holdings Ltd and Subsidiaries v Director General of Fair Trading, [2002] CAT 1 and JJB Sports PLC v Office of Fair Trading, [2004] CAT 17. In these cases, the Competition Appeals Tribunal stated that the level of strong and compelling evidence must take into account the seriousness of the alleged conduct, ensuring that the undertaking's presumption of innocence is respected, as well as any reasonable doubt that may exist.

42. D Friedman ‘Beyond the tort/crime distinction’ (1996) 76 Buffalo U L Rev 103 at 110; S Shavell ‘Criminal law and the optimal use of nonmonetary sanctions as a deterrent’ (1985) 85 Colum L Rev 1232 at 1235; and R Posner ‘An economic theory of the criminal law’ (1985) Colum L Rev 1193.

43. P Robinson ‘The criminal-civil distinction and the utility of desert’ (1996) 76 Boston U L Rev 201 at 203.

44. Jones and Williams, above n 30, p 113.

45. Patricia Hewitt, Secretary of State for Trade and Industry. Hansard HC Deb, vol 383, col 48, 10 April 2002.

46. Hammond and Penrose, above n 16, at 7.3; See also Furse, M and Nash, S The Cartel Offence (Oxford: Hart Publishing, 2004) at 3.6-3.7; and Stephan, above n 15.

47. Department for Business, Innovation and Skills (BIS) A Competition Regime for Growth: A Consultation on Options for Reform (London: BIS, March 2011); BIS Growth, Competition and the Competition Regime: Government Response to Consultation (London: BIS, March 2012) p 1011.

48. R v Ghosh [1982] EWCA Crim 2. See Stephan, above n 15; P Whelan ‘Improving criminal cartel enforcement in the UK: the case for the adoption of BIS's “Option 4”’ (2012) 8(3) Eur Competition J 589; A MacCulloch ‘The cartel offence: defining an appropriate “moral space”’ (2012) 8(1) Eur Competition J 73-93.

49. R v Dean and Stringer (2015) Southwark Crown Court, unreported. See also Competition and Markets Authority, CMA statement following completion of criminal cartel prosecution (24 June 2015).

50. The case is unreported, but this author acted as an expert advisor to the defence team of Clive Dean and sat through the entire trial.

51. There are numerous examples in the US. In Ireland, the first instance of a jury conviction for cartel conduct was in DPP v Hegarty [2013] IECCA 66.

52. See eg Enterprise and Regulatory Reform Public Bill Committee June 19, 2012, col 7 and 10 July 2012, col 540.

53. A Stephan ‘The UK cartel offence: a purposive interpretation?’ (2013) Crim L Rev 879-892; P Whelan ‘Section 47 of the Enterprise and Regulatory Reform Act 2013: a flawed reform of the UK cartel offence’ (2015) 78(3) Mod L Rev 493-521.

54. Whelan, above n 48.

55. Jones and Williams, above n 30, p 108.

56. See Law Commission Consultation Report 195 ‘Criminal liability in regulatory contexts: a consultation paper’ (2010).

57. RE Goodin ‘An epistemic case for legal moralism’ (2010) 30(4) Oxford J Legal Stud 615-633.

58. R Williams ‘Cartels in the criminal landscape’ in Beaton-Wells and Ezrachi, above n 11, pp 295-298.

59. C Parker ‘Criminalisation and compliance: the gap between rhetoric and reality’ in Beaton-Wells and Ezrachi, above n11.

60. See eg A Ashworth ‘Criminal attempts and the role of resulting harm under the code, and in the common law’ (1987-1988) 19 Rutgers L J 725 at 742.

61. Jones and Williams, above n 30, p 116.

62. Ibid, p 1 13.

63. See eg Attorney General of the Commonwealth of Australia v Adelaide Steamship Co Ltd [1913] AC 781; Mogul Steamship Co Ltd v McGregor, Gow & Co (1888) 21 QBD 544; (1889) 23; QBD 598 (CA); [1892] AC 25; Jones v North (1875) LR 19 Eq, 426, 429.

64. Norris v Government of the United States of America and others [2008] UKHL 16 at 60.

65. J Lever and J Pike ‘Cartel agreements, criminal conspiracy and the statutory 'cartel offence’: parts I and IF (2005) 26(2) Eur Competition L Rev 90 at 95; Norris v Government of the United States of America and others [2007] EWHC 71 at 54 and 64; also discussed by Whelan, above n 33, p 103.

66. See Allen, GC Monopoly and Restrictive Practices (London: George Allen & Unwin, 1968) p 135 , discussed in Harding and Joshua, above n 6, p 51.

67. M Martyniszyn ‘Export cartels: is it legal to target your neighbour? Analysis in light of recent case law’ (2012) 15(1) J Int'l Econ L181-222.

68. See A Stephan ‘Why morality should be excluded from the cartel criminalisation debate’ (2012) 3(1) New J Eur Crim L 126-237; C Harding ‘Business collusion as a criminological phenomenon: exploring the global criminalisation of business cartels’ (2006) 14 Crit Crim 181; A MacCulloch ‘The cartel offence and the criminalisation of UK competition law’ [2003] J Bus L 615. It is also notable that Mill argued that the criminal law should only concern itself with behaviour that harms others: Mill, JS On Liberty (Oxford: Oxford World's Classics, 1998 - first published 1859).

69. For an excellent discussion of these, see Whelan, above n 3 3, p 27, citing the examples of Wils, WIs criminalization of EU competition law the answer?’ in Cseres, K, Schinkel, MP and Vogelaar, F (eds) Criminalization of Competition Law Enforcement: Economic and Legal Implications for the EU Member States (Cheltenham: Edward Elgar, 2006); T Clavani ‘Cartel penalties and damages in Ireland: criminalization and the case for custodial sentences’ in Cseres et al, ibid; Stephan, above n 15; D Ginsburg and J Wright ‘Antitrust sanctions’ (2010) 6(2) Competition Pol'y Int'l 187.

70. See Stephan, A and Nikpay, ALeniency decision-making from a corporate perspective: complex realities’ in Beaton-Wells, C and Tran, C (eds) Anti-Cartel Enforcement in a Contemporary Age: The Leniency Religion (Oxford: Hart Publishing, 2015).

71. C Beaton-Wells and C Parker ‘Justifying criminal sanctions for cartel conduct: a hard case’ (2013) 1(1) J Antitrust Enforcement 198.

72. Ibid.

73. See Oxera Quantifying Antitrust Damages: Towards Non-binding Guidance for Courts, study prepared for the European Commission (December 2009), available at http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_study.pdf (accessed 20 December 2016).

74. A Stephan ‘Price fixing during a recession: implications of an economic downturn for cartels and enforcement’ (2012) 35(3) World Competition 511-528.

75. See discussion by Whelan, above n 33, pp 92-95.

76. C Harding ‘The anti-cartel enforcement industry: criminological perspectives on cartel criminalisation’ (2006) 14 Crit Crim 181; Harding and Joshua, above n 6, p 51.

77. A Stephan ‘See no evil: cartels and the limits of antitrust compliance programs’ (2010) 31(8) The Company Lawyer 231-239.

78. MacCulloch, above n 48.

79. Green, SP Lying, Cheating and Stealing: A Moral Theory of White Collar Crime (Oxford: Oxford University Press, 2006); and C Beaton-Wells ‘Capturing the criminality of hard core cartels: the Australian proposal’ (2007) 31 Melbourne U L Rev 675.

80. Beaton-Wells, C and Fisse, B Australian Cartel Regulation: Law, Policy and Practice in an International Context (Cambridge, UK: Cambridge University Press, 2011).

81. MacCulloch, above n 48, p 85; see also Lever and Pike, above n 65.

82. Green, above n 79.

83. See Green, above n 34, at 1551, discussed in Whelan, above n 31, pp 5-6.

84. Ibid, pp 1603-1535.

85. Wardhaugh, B Cartels, Markets and Crime: A Normative Justification for the Criminalisation of Economic Collusion (Cambridge, UK: Cambridge University Press, 2014), Chapter 1; B Wardhaugh ‘A normative approach to the criminalisation of cartel activity’ (2012) 32 Legal Stud 369.

86. Mill, JS On Liberty (London: Parker, 1859).

87. Rawls, J A Theory of Justice (Cambridge, MA, Harvard University Press, 1999).

88. Wardhaugh, n 88, pp 49-51.

89. Ibid, p 49.

90. Whelan, above n 3 3, ch 4 and Whelan, above n 31; he employs a tripartite framework set out by the American legal theorist Green and involves culpability (the state of mind of the defendant), social harmfulness (the consequences of the conduct) and moral wrongfulness (the conduct in question violates a moral norm). Green does not suggest that these act as a set of necessary conditions for criminalisation, but only as a framework to help us understand the complexity of white collar crime: S Green ‘Moral ambiguity in white collar criminal law’ (2004) 18 Notre Dame J L Ethics & Pub Pol'y 501.

91. See Packer, H The Lim its ofthe Criminal Sanction (Oxford: Oxford University Press, 1968).

92. Whelan, above n 31, p 10.

93. Consumer and producer welfare concern the distribution of wealth or profit in an economy between those selling a product and those buying it. Many economists contend that it is the total welfare in the market that is important, and that the way in which competition policy is aimed at maximising consumer welfare can actually reduce welfare in some markets. They argue that the fact that a total welfare standard results in more wealth transfers from consumers is mitigated by the fact that any extra profits enjoyed by the firm will benefit shareholders and employees (who are also consumers) and allow the firm to better innovate and expand. This is a separate question to cartel harm, which is generally detrimental to welfare in the market regardless of whether there is an emphasis on consumer or total welfare. Contrast DW Carlton ‘Does antitrust need to be modernized?’ (2007) 21(3) J Econ Perspectives 155-176 with R Pittman ‘Consumer surplus as the appropriate standard for antitrust enforcement’ (2007) 3 Competition Pol'y Int'l 205. In addition, under Art 101(3), in order to gain an exception from a breach of Art 101(1), a firm must demonstrate that any countervailing efficiencies that arise out of the arrangement benefit consumers.

94. Directive 2014/104/EY of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union [2014]; Case C-453/99, Courage Ltd v Bernard Crehan [2001] ECR I-6297 and joined cases C-295/04 to C-298/04, Vincenzo Manfredi and others v Lloyd Adriatico Assicurazioni Spa and others [2006] ECR I-6619.

95. Whelan, above n 31, pp 16-21.

96. This was argued in Lever and Pike, above n 65, at 95 and accepted by the High Court in the extradition case: Norris v Government of the USA [2007] EWHC 71 (Admin), [2007] 1 WLR 1730.

97. Whelan, above n 33, p 92.

98. Pew Global Attitudes Project Views of a Changing World, Second Major Report of the Pew Global Attitudes Project (June 2003).

99. Whelan, above n 33, p 103.

100. Harding and Joshua, above n 6, ch 2.3.

101. The study was funded by the Centre for Competition Policy, with money awarded to it by the Economic and Social Research Council (UK).

102. For a full list of these and more detail on the methodology, see A Stephan ‘Survey of public attitudes to price fixing in the UK, Germany, Italy and the USA’ CCP Working Paper 15-8, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2642181 (accessed 23 September 2016). Questions generally gave respondents two alternative options and they were asked to indicate which they agreed with more.

103. This study was cited in the UK's decision to reform the cartel offence under the Enterprise and Regulatory Reform Act 2013. See BIS, A Competition Regime for Growth, above n 47. The results of the 2007 study can be found in A Stephan ‘Survey of public attitudes to price fixing and cartel enforcement in Britain’ (2008) 5(1) Competition L Rev 123-145.

104. At the time of writing, the UK had held a referendum in which a majority of the population chose to leave the EU, but the UK is still at this time a full EU Member State.

105. Whelan, above n 48.

106. ‘Five German brewers fined €106.5 m for price-fixing’ Financial Times 13 January 2014; ‘German sausage cartel caught bangers to rights’ The Guardian 15 July 2014; ‘German cartel inquiry launched into Deutsche Bahn’ Financial Times 30 January 2014.

107. See generally A Stephan ‘Cartel criminalisation: the role of the media in the “battle for hearts and minds”’ in Beaton-Wells and Ezrachi, above n11.

108. CMA UK Businesses’ Understanding of Competition Law, report prepared for CMA by IFF Research (26 March 2015), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/429876/UK_businessesunderstanding_of_competition_law_-_report.pdf (accessed 20 December 2016).

109. Corporate fines and damages largely impact shareholders, and individual fines or director disqualification can either be indemnified or circumvented through inventive employment arrangements. The reputational damage caused by civil enforcement may also be very limited. This is because many cartels are organised by upstream firms that sell to other businesses and because the very characteristics that make the cartel possible (few competitors and no substitutes to the product in question) mean that customers have no choice but to continue purchasing the product: see Whelan, above n 33, pp 75-78.

110. Williams, above n 58, p 301, citing Feinberg, J Harmless Wrongdoing: The Moral Limits of the Criminal Law (Oxford: Oxford University Press, 1988) vol 4, p 176 .

111. Lacey, above n 34, p 942.

112. Baker, above n 11, p 27.

113. Reiner, RMedia made criminality: the representation of crime in the mass media’ in Reiner, R, Maguire, M and Morgan, R (eds) The Oxford Handbook of Criminology (Oxford: Oxford University Press, 2002) pp 302340 .

114. See eg A Stephan ‘Four key challenges to the successful criminalisation of cartel laws’ (2014) 2(2) J Antitrust Enforcement 305-332.

* The support of the Economic and Social Research Council (UK) is gratefully acknowledged. The usual disclaimer applies.

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