Will the SFO Make Progress on Criminal Cartels?

The SFO now has responsibility for criminal cartel prosecutions, but is it having any more luck than those which went before?

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LONDON (Within the Law) - Last year, the SFO signed a memorandum of understanding with the Competition and Markets Authority in which it would assume responsibility for the biggest and most complex criminal cartel prosecutions.

The agreement saw the CMA effectively withdrawing from the environment has failed to win a single contested case since the introduction of the 2002 Enterprise Act. 

For the first time, Cartels became a criminal offense. However, enforcement efforts met with little success. 

High profile failures such as the collapse of the price-fixing prosecution of British Airways executives by the Office of Fair Trading. In 2014 lawmakers tried to make the offense easier to prosecute by removing the necessity of proving an individual had acted dishonestly. However, successes have been thin on the ground. 

The CMA has not brought a case for any conduct occurring after 2014 and secured just two guilty pleas for conduct which occurred before. 

The memorandum of understanding aimed to strengthen cooperation between the organisations. The CMA will undertake initial enquiries and pass the case onto the SFO if appropriate while the SFO will pass on any information it has on suspected offenses. However, critics have already doubted the SFO’s resolve 

The understanding is part of Lisa Osofsky’s wider desire to work with other agencies. She cites the successful case against Airbus as an example of where collaboration with another agency has borne fruit. 

It also further shows that the SFO is seeking to broaden its remit beyond its traditional caseload of fraud and corruption for 2021. 

However, with resources stretched thin and the organisation already having to prioritise resources, there is doubt about whether it will be able to fight on competing fronts. Adding cartel enforcement to their caseload could be a step too far. 

The only positive sign is that the SFO can’t do worse than its predecessor. A record of zero successful cases shouldn’t be too hard to beat. However, adding another burden to the regulator’s already strained load doesn’t bode well. 

The SFO already faces questions about its own record of failing to bring successful cases. It is currently conducting an internal review into its own conduct having been publicly criticised in court. 

It’s hard to escape the feeling that the UK is not taking the threat of cartels to competition and consumers as seriously as other countries. 

(Written by Tom Cropper, edited by Klaudia Fior)

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