Saturday 24 January 2015

Ireland’s cartel immunity programme now open to ringleaders


Ireland has removed a restriction which prevented cartel ringleaders from receiving immunity in return for their cooperation with a cartel investigation.  The move announced on 22 January 2015 is expected to bring about more and better immunity applications.  However, the approach on this aspect differs from the EU model where full immunity is not available for ringleaders. 

While the approach might initially seem a little peculiar it needs to be understood against the very specific features of Ireland’s legal and institutional framework for the investigation and prosecution of cartels.  Apart from merger cases, the competition authority is an investigative body rather than a decision-maker. The DPP prosecutes hardcore cartels which operate covertly.  Cartel members must apply to the competition authority but immunity (if available) is granted by the DPP. 

Although the Irish regime has its idiosyncrasies it seems to have worked reasonably well so far.  I’d be slow to judge the current reform without some time to see how the new approach beds down in practice.  The concept of a ‘ringleader’ or ‘coercer’  has always struck me as somewhat amorphous.  There can be cases where the conspirators take it in turns to rotate leadership to try to disqualify their members from being eligible for immunity.  Where you face a prison sentence of 10 years (double the jail -time under the UK rules) an application for immunity carries a risk.  This development might then be a practical approach to bolster the incentives to come forward by removing one dilemma over eligibility.

 

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