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The Law and Economics of Enhancing Cartel Enforcement: Using Information From Non-Cartel Investigations to Prosecute Cartels

  • Ghosal Vivek

    (Professor, School of Economics, Georgia Institute of Technology, Atlanta, USA and Research Fellow, CESifo, Munich, Germany)

I present the following proposal: information revealed during non-cartel investigations by competition law enforcement authorities, such as evaluation of mergers and acquisitions (M&As) or investigation of monopolization (dominance) conduct, should be directly used to investigate and prosecute cartels. Currently, in several jurisdictions, information acquired in, for example, an M&As investigation typically cannot be directly used for a cartel case due to the underlying statutes and the legal and administrative procedures that govern information use. Reviewing the management and corporate strategy literature, I note that M&As form a vital part of firms’ core business strategy, with the longer-run strategic aspects being more important. These longer-run strategies could be jeopardized if the firms were engaging in collusion, as the likelihood of detection and prosecution would increase under the proposed rule change, which would punish bad (collusive) behavior. I argue that irrespective of exactly how many cartels are actually prosecuted via this channel, the proposal has the likelihood of creating a meaningful deterrent effect. I also discuss the potential downsides related to Type 1 errors and administrative costs. Overall, I argue that the proposed rule change could increase the efficiency and effectiveness of cartel enforcement, and open an additional front in the fight against hardcore cartels that operate within jurisdictions as well as internationally.

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Article provided by De Gruyter in its journal Review of Law & Economics.

Volume (Year): 7 (2011)
Issue (Month): 2 (December)
Pages: 501-538

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Handle: RePEc:bpj:rlecon:v:7:y:2011:i:2:n:7
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  1. Tomaso Duso & Klaus Gugler & Florian Szücs, 2010. "An Empirical Assessment of the 2004 EU Merger Policy Reform," CIG Working Papers SP II 2010-16, Wissenschaftszentrum Berlin (WZB), Research Unit: Competition and Innovation (CIG).
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  18. Ghosal, Vivek & Gallo, Joseph, 2001. "The cyclical behavior of the Department of Justice's antitrust enforcement activity," International Journal of Industrial Organization, Elsevier, vol. 19(1-2), pages 27-54, January.
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  22. repec:cup:cbooks:9780521816632 is not listed on IDEAS
  23. repec:cup:cbooks:9780521016919 is not listed on IDEAS
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