This presentation by Prof. Caron BEATON-WELLS from the University of Melbourn, Australia was made during the discussion on "Sanctions in Anti-trust cases" held at the 15th Global Forum on Competition on 2 December 2016. More papers and presentations on the topic can be found out at www.oecd.org/competition/globalforum/competition-and-sanctions-in-antitrust-cases.htm

1. Criminal Sanctions –
The Leniency Conundrum
Professor Caron Beaton-Wells
University of Melbourne
OECD Global Forum on Competition
Sanctions in Antitrust Cases – Session IV
1-2 December 2016

2. Instrumental
justifications?
30 countries
have
criminalised
cartel conduct
Since the late 1990s…
Normative
justifications?

3. Coincidence?
50 countries
have adopted
leniency
policies
30 countries
have
criminalised
cartel conduct
Since the late 1990s…

4. By recognizing
interdependencies among
elements [of an enforcement
system], it is possible to
understand more clearly how an
adjustment in one element
affects others…
- William Kovacic (2011)

5. CRIMINALISATION AND LENIENCY –
INSTRUMENTAL CONSIDERATIONS

6. Do criminal sanctions
increase leniency
applications?
Cartel detection

7. Do criminal sanctions mean
more cooperation and
evidence from individuals?
Cartel investigation

8. Does testimony from
leniency witnesses assist
secure convictions?
Cartel prosecution
Does testimony from leniency
witnesses help to secure
convictions?

9. Do criminal sanctions mean
more cooperation and
evidence from individuals?
Cartel deterrence
Do criminal sanctions and
leniency combined increase
deterrence?

10. CRIMINALISATION AND LENIENCY –
NORMATIVE CONSIDERATIONS

11. Impact on public support
and system legitimacy?
- Stephan & Nikpay, 2015; Beaton-Wells et al, 2010
Country % public support for leniency
United States 51
United Kingdom 53
Germany 46
Italy 46
Australia 25

12. Impact on normative compliance
by the business sector?

13. Impact on consistency in policy
and practice?
NO
• Cartelists cheat the market and the public by fixing
prices, etc
YES
• Cartelists cheat each other by deviating from the
cartel
YES
• Cartelists cheat each other by applying for leniency
NO
• Cartelists cheat on the competition authority by not
reporting and cooperating fully

14. 14
Criminal sanctions and leniency
policies -
Key questions
1. Does the combination enhance or detract
from the detection, investigation, prosecution
and ultimately deterrence of cartels?
2. Does the combination enhance or detract
from the role and force of the criminal law in
labelling and punishing cartel conduct as
criminal?

15. Criminal sanctions and
leniency policies - unnatural
allies in the war against
cartels?
15

16. Comments and questions welcome
16
c.beaton-wells@unimelb.edu.au