Cartel

 

Author Definition

 

Definition

A cartel is an anti-competitive agreement or concerted practice between two or more rival firms aimed at coordinating their competitive behaviour on the market or influencing other parameters of competition through practices that include but are not limited to: the direct or indirect fixing of prices or other trading conditions; the limitation or control of production, markets, technical developments or investment; the sharing of markets or sources of supply, including bid-rigging; restrictions of imports or exports, or a combination of these practices. Exchange of competitively sensitive information can also be treated as cartel conduct in certain circumstances.

 

Commentary

Cartels involve collusion among rival firms to distort, limit or eliminate competition, primarily in pursuit of higher prices and profits, without producing any countervailing benefits. As such, cartels are considered among the most harmful forms of anti- competitive conduct and their prosecution is a priority among competition authorities. It is estimated that in 2021, competition authorities worldwide imposed cartel fines totalling approximately USD 4.6 billion (EUR 4 billion). Cartel participation may also give rise to individual criminal liability in certain jurisdictions as well as private damages actions by harmed undertakings and/or consumers.

Cartels involve collusion between firms and can therefore be distinguished from unilateral conduct capable of infringing competition laws (i.e. an abuse by a dominant firm of its position of market power).

A cartel typically involves secret meetings or contacts between cartel participants over a sustained period of time (although in certain jurisdictions a one-off meeting may provide a sufficient basis for a cartel). Such arrangements may take many different forms: cartels can be based on written or oral agreements, whether formal or informal in nature, or, in the absence of a concluded agreement, a common understanding by which the parties consciously commit to a common scheme (Monsanto, pages 465 U.S. 752, 768; Suiker Unie, paragraph 26).

Cartel participants generally compete in the production and / or supply of a relevant set of products or services. However, organisations such as trade associations and consultancy firms may also be found guilty of cartel conduct if they knowingly facilitate cartel meetings, contacts or the exchange of competitively sensitive information between competitors.

A cartel may result from an isolated event, a series of acts or from continuous conduct. Many cartels are complex and last a long period of time. During the entire duration of the cartel, some firms may be more active than others: some may abandon the cartel but subsequently re-join, others may attend only a handful of meetings. If a cartel operates on a global basis there may also be a number of sub-agreements covering different products or services and jurisdictions. For these reasons, competition authorities have found ways to ensure that a related series of anti-competitive actions may be treated as a single, overreaching cartel.

In the EU, for example, the concept of a "single and continuous infringement" (SCI) enables a competition authority to group together a series of infringements of Article 101 of the Treaty for the Functioning of the EU (TFEU) and treat these as forming part of the same cartel conduct, on the ground that they pursue a single overall plan. The US has developed a similar concept, known as the "single versus multiple conspiracies" doctrine. Under these concepts, it is necessary to determine whether the cartel arrangements are sufficiently linked to be considered part of one unified cartel, instead of a number of smaller, independent collusive practices.

Practices commonly found in cartel arrangements, such as price-fixing, output restrictions and market-sharing, are treated as among the most serious types of competition infringement. For example, in the EU such arrangements are characterised as restrictions of competition "by object", while in the US they are treated as per se violations under Section 1 of the Sherman Act. The important practical consequence of such categorisations is that there is generally no need for competition authorities to establish the actual effect of the cartel on any specific market in order to conclude that there has been a competition law infringement; harm to competition is self-evident given the nature of the activities involved (Cartes Bancaires, paragraph 51).

Most forms of cartel activity entail exchanges of information among rivals. The exchange of certain types of information between competitors can provide a standalone basis for a cartel finding. Competition authorities are particularly concerned with the exchange of so-called "competitively sensitive information" (CSI) that may enable undertakings to predict each other’s future behaviour and to coordinate their behaviour on the market by reducing uncertainty as to the operation of the market in question, with the result that competition is restricted (T-Mobile, paragraph 35). CSI may include future prices, marketing strategies, quantities, commercial terms with particular customers or suppliers, costs, operational plans, production levels and utilization, capacity reduction/expansion plans and technical information. The exchange of CSI may be unlawful where it is part of a mechanism for enforcing or monitoring a cartel or as an infringement in itself.

Competition authorities generally have extensive powers to investigate suspected cartels. These typically include powers to request information directly from firms and to conduct surprise inspections (so-called "dawn raids") at business or private premises to search for electronic or physical documents and conduct interviews. These wide-ranging powers of investigation are generally limited by legal professional privilege and the privilege against self-incrimination (with the availability, precise nature and scope of differing forms of privilege capable of varying between jurisdictions).

A fundamental feature of cartel enforcement worldwide is the power for competition authorities to impose significant sanctions, with the related aims of punishing firms that participate in cartels and deterring firms from forming cartels in the first place. Most competition authorities can impose substantial administrative fines on cartel participants. In 2021, the largest cartel fines were imposed by the European Commission (totalling around USD 2 billion; EUR 1.7 billion), South Korea (USD 865 million; EUR 763 million), Brazil (USD 656 million; EUR 578 million), China (USD 268 million; EUR 263 million), the United States (USD 150 million; EUR 132 million) and India (USD 117 million; EUR 103 million).

Parties harmed by cartel conduct can and increasingly do bring actions for damages. In certain jurisdictions (like the EU) a competition authority’s findings can be relied on as evidence without the claimant needing to prove the existence of the cartel.

Many jurisdictions, such as Australia, Canada, Brazil, Chile, Denmark, France, Germany, Hungary, Israel, Italy, Japan, Mexico, Poland, Romania, South Africa, South Korea, the UK and the US, also have powers to impose criminal sanctions against individuals involved in cartel activity. These sanctions may lead to imprisonment in cases of serious infringement. In most of these jurisdictions, criminal cartel offences are investigated and prosecuted by a public prosecutor and criminal sanctions imposed by the national criminal courts. One notable exception is the UK where both the Competition and Markets Authority (CMA) and the Serious Fraud Office (SFO) have the power to investigate and prosecute criminal cartel offences. However, only the UK’s criminal courts can impose criminal sanctions against individuals.

One of the most successful tools to detect and prosecute cartels is the use of leniency programmes, whereby cartel participants that report the existence of a cartel to a competition authority and hand over evidence are granted either total immunity (in principle to the first undertaking to come forward) or a reduction from fines. Leniency programmes have been adopted in most jurisdictions worldwide.

 

Case references

Case C-67/13P Groupement des cartes bancaires v Commission, EU:C:2014:220 (Cartes Bancaires)

Case C-8/08 T-Mobile Netherlands, EU:C:2009:343 (T-Mobile)

Monsanto Co. v Spray-Rite Svc. Corp, 465 U.S. Supreme Court, 752, 768 (1984) (Monsanto)

Case C-40/73 Suiker Unie and Others v Commission, EU:C:1975:174 (Suiker Unie)

 

Bibliography

Alison Jones, Brenda Sufrin and Niamh Dunee, EU Competition Law: Text, Cases, and Materials (7th edition, Oxford University Press, 2019), Chapter 9.

David Bailey and Laura Elizabeth John (eds.), Bellamy and Child: European Union Law of Competition (8th edition, Oxford University Press, 2018), Chapter 5.

Douglas Broder, US Antitrust Law and Enforcement (3rd edition, Oxford University Press, 2016), Chapter 3.

Richard Whish and David Bailey, Competition Law (10th edition, Oxford University Press, 2021), Chapter 13.

Authors

  • Herbert Smith Freehills (Brussels)
  • Herbert Smith Freehills (Brussels)

Quotation

Daniel Vowden, Kyriakos Fountoukakos, Cartel, Global Dictionary of Competition Law, Concurrences, Art. N° 12240

Visites 27524

Publisher Concurrences

Date 1 January 1900

Number of pages 500

 

Institution Definition

Arrangement(s) between competing firms designed to limit or eliminate competition between them, with the objective of increasing prices and profits of the participating companies and without producing any objective countervailing benefits. In practice, this is generally done by fixing prices, limiting output, sharing markets, allocating customers or territories, bid rigging or a combination of these. Cartels are harmful to consumers and society as a whole due to the fact that the participating companies charge higher prices (and earn higher profits) than in a competitive market. © European Commission

A cartel is a formal agreement among firms in an oligopolistic industry. Cartel members may agree on such matters as prices, total industry output, market shares, allocation of customers, allocation of territories, bid-rigging, establishment of common sales agencies, and the division of profits or combination of these. Cartel in this broad sense is synonymous with "explicit" forms of collusion. Cartels are formed for the mutual benefit of member firms. The theory of "cooperative" oligopoly provides the basis for analyzing the formation and the economic effects of cartels. Generally speaking, cartels or cartel behaviour attempts to emulate that of monopoly by restricting industry output, raising or fixing prices in order to earn higher profits. A distinction needs to be drawn between public and private cartels. In the case of public cartels, the government may establish and enforce the rules relating to prices, output and other such matters. Export cartels and shipping conferences are examples of public cartels. In many countries depression cartels have been permitted in industries deemed to be requiring price and production stability and/or to permit rationalization of industry structure and excess capacity. In Japan for example, such arrangements have been permitted in the steel, aluminum smelting, ship building and various chemical industries. Public cartels were also permitted in the United States during the depression in the 1930s and continued to exist for some time after World War II in industries such as coal mining and oil production. Cartels have also played an extensive role in the German economy during the inter-war period. International commodity agreements covering products such as coffee, sugar, tin and more recently oil (OPEC: Organization of Petroleum Exporting Countries) are examples of international cartels which have publicly entailed agreements between different national governments. Crisis cartels have also been organized by governments for various industries or products in different countries in order to fix prices and ration production and distribution in periods of acute shortages. In contrast, private cartels entail an agreement on terms and conditions from which the members derive mutual advantage but which are not known or likely to be detected by outside parties. Private cartels in most jurisdictions are viewed as being illegal and in violation of antitrust laws. Successful cartels, be they public or private, require "concurrence", "coordination" and "compliance" among members. This means that cartel members need to be able to detect when violations of an agreement take place and be able to enforce the agreement with sanctions against the violators. These conditions are not easily met and this often explains why cartels tend to break down over time. © OECD

See also Price-fixing agreement and Bid-rigging

 
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