Why Morality Should Be Excluded from the Cartel Criminalisation Debate
| Author | Andreas Stephan |
| Published date | 01 June 2012 |
| Date | 01 June 2012 |
| DOI | http://doi.org/10.1177/203228441200300203 |
| Subject Matter | Conference Paper |
New Journal of Eu ropean Crimina l Law, Vol.3, Issue 2, 2012 127
WHY MORALITY SHOULD BE EXCLUDED
FROM THE CARTEL CRIMINALISATION
DEBATE
A S*
1. INTRODUCTION
is paper argues that t he use of crimina l sanctions against hard core cartels is
justi able on t he grounds of preventin g harm alone, and t hat the question of w hether
price xing is als o morally wrong provides an unhelpf ul distraction. e crimina l law
has evolved beyond protecting common morality by only engaging with a small
number of the most objectionable acts per petrated in society. Its traditional l inks with
morality in a religious context are also less relevant today and in some areas the
breakdown of these lin ks has resulted in decriminalisation. Although it is true t hat
cartel criminalisation is an extreme form of regulatory control, it is justi able given
the potential harm caused by cartels and the di culty in identifying t he target for
direct regulation. Price xing may occur anywhere in the economy and is not
restricted to a smal l number of identi able actors. Criminal cartel o ences should
therefore simply be accepted as a necessar y tool with which to punish and (more
importantly) deter harmf ul cartel conduct. Yet, those involved in designing and
enforcing cartel o ences – principally politicians and competition authority o cials
– have felt the need to draw parallels bet ween price xing and the or fraud. In the
UK, legislators went as far as to include t he moral marker employed in the a nd fraud
cases – the standard of dishonesty. However, the acts of price xing, t he and fraud
are not morally equiva lent. Price xing does not require physica l interference or
violence, nor does it necessari ly involve a positive deception. e harm caused by the
act of price xing is o en remote (in terms of perpetrator and victim) and widely
disp ersed, ye t it is ver y signi cant i n its entirety – potentially exceed ing the monetary
cost of both the and fraud combined. is paper rst d iscusses why the question of
morality is problematic in t he context of price xing a nd why it is an unnecessary
* Senior Lectu rer. UEA Law School a nd ESRC Centre for Compet ition Policy, University of Ea st
Anglia, Nor wich NR4 7TJ, UK. Contact: a .stephan@uea.ac.uk. e support of the Economic and
Social Resea rch Council (UK) is grat efully acknowled ged.
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