Criminalisation of Cartels and Bid Rigging Conspiracies

Sanctions against cartels vary greatly across jurisdictions, from monetary fines against firms and other legal persons, to criminal sanctions (including custodial sentences) against individuals. In the last years, an increased adoption of criminal enforcement regimes has been observed across jurisdictions, in particular against hard core cartels, although custodial sentences remain quite limited in most jurisdictions.

In June 2020, the OECD held a roundatble on criminal enforcement against cartels, including in the area of public procurement (bid rigging). It examined different types of criminal sanctions imposed against firms and individuals. It  also explored the different approaches to investigation and prosecution of criminal offences, as well as the role of corporate and individual leniency programmes, whistle-blower legislation and corporate compliance programmes in facilitating the discovery and reporting of illegal conducts. Finally, it looked at how competition agencies co-operate with prosecution authorities in their own jurisdictions.

This page contains all related documentation. 

• There is a trend towards the introduction of criminal sanctions, and more and more jurisdictions can impose criminal sanctions against individuals for cartels and bid rigging conspiracies. Despite this trend, there is no international consensus on criminalisation of cartels. 
• Two theories of punishment have emerged in the criminalisation debate: the economic deterrence theory and the retribution theory. The deterrence theory seems to have gained more traction.
• Cartels and in particular bid rigging conspiracies are often part of a wider set of criminal conduct. Competition authorities can benefit from close co-operation with other enforcers, such as public prosecutors, fraud or anti-corruption investigators. 
• Criminal sanctions can be a powerful deterrent, but effective enforcement requires significant time and resources.
• Integrating criminal enforcement in existing civil or administrative regimes often requires important procedural adjustments that have an impact on the cost of investigating and prosecuting antitrust offences. 
• Leniency programmes do not operate in a vacuum, and criminalisation influences the incentives of prospective leniency applicants. 
• International co-operation is vital for effective cartel enforcement, but legal and practical barriers remain between criminal and administrative regimes.

OECD Note EN | FR 

Detailed Summary of the discussion EN | FR

Executive Summary with key findings EN | FR

Paper by Peter Whelan

Paper by Barbara Rosenberg and Marcos Exposto