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  • In February 2022, after more than four years in the courts, the Commonwealth Director of Public Prosecutions discontinued its prosecution of ANZ Banking, Citigroup and Deutsche Bank AG for alleged cartel conduct.
  • The history of the proceeding demonstrates the onerous burdens shouldered by a prosecutor as opposed to a plaintiff in a civil penalty proceeding.
  • Analysis of the burdens of a criminal prosecution indicates that civil penalty proceedings may be the more advantageous route for the regulator, with criminal proceedings initiated only in the pursuit of incarceration of high profile individuals.

Cartels exist, in essence, when businesses agree to act together to boost profits instead of competing. Such agreements enable would-be competitors to fix prices, share markets, rig bids and/or control the supply of goods. Cartel conduct can restrict healthy economic growth by artificially increasing prices; reducing innovation, choices and investment; constraining resources; destroying otherwise functioning businesses and consumer confidence; and increasing government burdens.[1]

The Australian Competition and Consumer Commission (‘ACCC’) has been pursuing civil penalties for cartel conduct since 2000 with high rates of success. In 2009, following the footsteps of other members of the OECD, cartel conduct was criminalised.[2]

Today, the ACCC refers matters of ‘hard-core’ cartel conduct to the Commonwealth Director of Public Prosecution (‘CDPP’) to commence criminal proceedings.[3] The CDPP has secured guilty pleas for cartel conduct in five matters, with penalties averaging $30 million for sentenced parties.[4]

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