Section 47 of the Enterprise and Regulatory Reform Act 2013: A Flawed Reform of the UK Cartel Offence

摘要

On 1 April 2014, section 47 of the Enterprise and Regulatory Reform Act 2013 (‘ERRA’) entered into force, ensuring significant changes to the criminal UK Cartel Offence. That particular criminal offence, contained in section 188 of the Enterprise Act 2002, was enacted in order to secure the deterrence of cartel activity affecting the UK. Following almost ten years of its enforcement, the Cartel Offence had failed to live up to its expectations. Consequently, following a public consultation it was reformed in substance. As a result of section 47 ERRA, the (controversial) definitional element of ‘dishonesty’ has been removed from the offence, a number of ‘carve outs’ from the offence have been created, and three additional defences now exist. This article examines in detail the specific reforms of the Cartel Offence and argues that, although considerable improvement has been made, the UK authorities currently have at their disposal a criminal offence that is fundamentally flawed and unworkable in practice. Further reform is therefore advised.