May 9, 2017
This this chapter of the book Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion, the authors consider a range of theories that may explain the dynamics in the cartel leniency — cartel criminalisation relationship and, in particular, that address the question as to whether the relationship suggests a largely instrumental justification for criminalisation (that is, using criminal sanctions to bolster leniency policies), as distinct from a more normative justification (that is, using criminal sanctions to reflect and punish the harmful and delinquent nature of cartels). Whichever theory is favoured, the authors argue that the relationship is problematic, replete with ambiguities, tensions and contradictions that threaten the legitimacy and effectiveness of both competition and criminal law enforcement. In making this case, Harding, Edwards and Beaton-Wells canvas the fragility of the economic policy justifications for singling out certain types of cartel conduct for criminal treatment; the retributive compromise and foreclosure inherent in a leniency-driven strategy of enforcement; the ways in which leniency policy underscores and may even reinforce the otherwise immoral (cheating) behaviour said to attract the moral opprobrium associated with criminal sanctions; the ways in which leniency policy shapes and distorts the relationship between cartelists as prospective leniency applicants and competition authorities; and the potential for leniency policy to be ‘gamed’ by cartelists and the associated risk of business capture of the legal process.
Christopher Harding, Caron Beaton-Wells and Jennifer Edwards, 'Leniency and Criminal Sanctions: Happily Married or Uneasy Bedfellows?' in in C Beaton-Wells and C Tran (eds), Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion, Hart Publishing, 2015, ch 12, pp234-260