Cartel Sentencing in Ireland: Criminal Standards of Proof, But Civil Sanctions

On 20 June 2018 the Court of Appeal in Ireland’s first bid-rigging case determined that the €7,500 fine imposed by the lower court on a corporate officer was unduly lenient. It was increased to €45,000. The €10,000 fine on the undertaking was not varied. The effect of the Court’s judgment, if followed in future cartel cases, is that for cartels in Ireland the criminal standard of proof remains, but the only sanction is a fine, what in many EU jurisdictions is regarded as a civil sanction. No gaol sentence was imposed and no justification provided. This is likely to undermine the effectiveness of the Cartel Immunity Programme, a vital tool for cartel detection and prosecution. Fines based on the cartel induced price rise are not only seriously underestimated by the Court, by a factor of around five, but imposed on the wrong target (i.e. the corporate officer not the undertaking). Ignorance as a defence has been revived. Victims are blamed. Bid-rigging cartels appear – unjustifiably - to be of lesser importance than other types of hard core cartels. Major arguments made by the Director of Public Prosecutions in the appeal were simply ignored by the Court with no explanation offered. The prospect for competition law enforcement in Ireland is grim, particularly with respect to bid-rigging cartels which the Competition and Consumer Protection Commission has made an enforcement priority.