The UK criminal cartel offence
Produced in partnership with Kingsley Napley
The UK criminal cartel offence

The following Competition guidance note Produced in partnership with Kingsley Napley provides comprehensive and up to date legal information covering:

  • The UK criminal cartel offence
  • Criminalisation of cartels (the law prior to 1st April 2014)
  • Removing dishonesty from the cartel offence (the law from 1st April 2014)

The creation of the Competition and Market Authority (CMA) was accompanied by a radical change in the element of the criminal cartel offence the prosecuting authorities must prove to convict directors and officers.

The entry into force of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) on 1 April 2014, saw the removal of the dishonesty element to the cartel offence. An individual will commit an offence if he or she agrees with one or more persons (whether dishonestly or otherwise) that two or more undertakings will engage in certain prohibited cartel arrangements, namely price-fixing, market-sharing, bid-rigging, or limiting output. Any such arrangements must have taken place in the UK.

As explained further below, the effects of this change are mitigated to some extent by the introduction of new exceptions (concerning notification of customers, publication of arrangements, complying with a legal requirement) and defences (including that the person accused did not intend to conceal information from customers or the CMA, and sought legal advice). Nonetheless, the changes provide greater scope for prosecutions and shift the burden of proof onto defendants when putting forward a defence.

In England, Wales and Northern Ireland prosecutions are primarily undertaken by the CMA, although the Serious Fraud Office will retain their powers to bring such prosecutions, as will other agencies with the consent of the CMA. Successful