On 9 December 2009, the UK Court of Appeal ruled that the criminal powers used by the OFT for the prosecution of individuals that are involved in cartels are compatible with the EU antitrust framework.

The appeal concerned a case brought by the OFT against “IB”, a senior executive of a company, for his involvement in a price fixing arrangement. In the course of the proceedings, IB raised an interlocutory appeal, challenging section 188 of the UK Enterprise Act, which makes it a criminal offence to engage in cartel activity. Under the Enterprise Act, the offence can be tried on indictment and is punishable with up to five years imprisonment.

IB argued that only the designated UK competition authority (the OFT) has any powers of enforcement under the EC Regulation 1/2003 on the implementation of the EU Treaty’s competition rules. He claimed that, as a result, the Crown Court has no jurisdiction to try an indictment alleging a cartel offence or to impose a punishment for breach of a cartel offence, where that cartel has an effect on trade between EU countries.

However, the court found that section 188 of the Enterprise Act is not a “national competition law” as set out in Regulation 1/2003 and that, in any case, there is nothing in that regulation to prevent national courts from applying it.

9 December 2009