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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