The Marine Hose cartel case in the UK requires special mention. *Reduced on appeal on 14 November 2008: Whittle 2½ years Allison 2 years Brammar 20 months Summary -This case was the first prosecution under section 188 of the Enterprise Act 2002 (EA02) which came into force with effect from June 2003.
The three defendants were involved, with others, in a cartel that operated in the marine hoses market, a specialised market for the production and supply of marine hoses used to transfer oil and petroleum products into and out of tankers. The cartel arrangements were in existence prior to the implementation of the EA02 in June 2003 and continued until the defendants were arrested in May 2007.Peter Whittle was employed as the cartel ‘co-ordinator’. David Brammar and Bryan Allison both worked for Dunlop Oil and Marine Ltd. Allison was the managing Director and Brammar reported directly to him.
The UK proceedings were commenced in December 2007 when the defendants were arrested and charged, and culminated with a hearing at Southwark Crown Court before HHJ Rivlin QC, Honorary Recorder of Westminster. Confiscation proceedings under the Proceeds of Crime Act 2002 were heard by HHJ Rivlin QC on 1 July 2008. Brammar and Whittle were ordered to pay £366,354 and £649,636 respectively or face a further term of imprisonment (four years for Whittle and three for Brammar).
All three defendants subsequently appealed against their sentences and the appeals were heard before a full court on 29 October 2008 with an approved judgment being handed down on 14 November.
The Airline Fuel Surcharge case was equally relevant. Airline passenger fuel surcharge – concluded prosecutions
R-v- George, Crawley, Burns and Burnett (airline passenger fuel surcharge) Summary – December 2011
On 8 November, the OFT announced that it had completed its review of the conduct of Virgin Atlantic Airways (‘VAA’) in connection with the OFT’s criminal investigation and proceedings in relation to airline passenger fuel surcharges. The purpose of the review was to decide whether VAA’s conduct in that matter fell short of its immunity obligations (as set out in its Immunity Agreement and the OFT’s published guidance) such as to warrant the revocation of its immunity in the OFT’s civil administrative proceedings in relation to airline passenger fuel surcharges.
In the specific circumstances of the present case, the OFT has decided that the conduct in question that potentially raised, or raised, concerns did not amount to non cooperation such as to warrant the revocation of VAA’s immunity. VAA co-operated with the OFT’s review. Whilst VAA does not agree with all of the factual findings which form the basis of the OFT’s conclusions, it welcomes the outcome of the review. December 2010 – On 17 December 2010 the OFT published a report summarizing the findings and recommendations of an OFT Board-led review into the events leading up to the collapse of the criminal trial in R v Burns and others, the response of the executive management of the OFT and the Board’s conclusion (pdf 140 kb).
May 2010 – On 10 May 2010 the prosecution offered no evidence following which the judge directed the jury to acquit all four defendants.
The analysis of sanctions focuses on fines and private damage awards because monetary sanctions are heavily used and tend to be the most efficient sanction to the extent feasible—subject, notably, to the limit of firms’ assets. As in most areas of law enforcement, sanctions should reflect harm. Large price elevations, which are disproportionately harmful, need to be adequately deterred, which requires high sanctions because firms’ profits are greater. Cases that apparently exhibit small price elevations are more likely to involve false positives and thus generate chilling costs, so moderating expected sanctions is valuable and less social cost from forgone deterrence results. Government fines in the European Union and the United States do not reflect this prescription very well, although private damages do. Furthermore, because the detection rate is low, multipliers need to be large, raising the possibility that the optimal magnitude of sanctions may be significantly higher than the level presently employed. Imprisonment, used increasingly and chiefly in the United States, provides a helpful supplement in achieving deterrence due to the possible inadequacy of fines and damages.1 Furthermore, because of agency problems in firms, sanctions, including imprisonment, applied to individual violators may be valuable. Injunctions do not seem to be widely used and do not appear to be important in principle because they fail to generate deterrence and must be enforced through other sanctions in any event. Nevertheless, many writers seem to be preoccupied with injunctions and believe that rules of liability need to be crafted, and possibly significantly constrained, by the feasibility of injunctions of a particular type, tantamount to command and control regulation.
As far as the Indian perspective is concerned, price fixing in India continues to be a major concern and stricter laws needs to be implemented, i.e., to say that the competition law needs to be amended with the socio-economic requirement of the nation.
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