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The creation of the Competition and Market Authority (CMA) in 2013 was accompanied by a radical change in an element of the criminal Cartel offence that the prosecuting authorities must prove to convict directors and officers.

The Entry into force of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) on 1 April 2014 saw the removal of the dishonesty element to the cartel offence. An individual will commit an offence if he or she agrees with one or more persons (whether dishonestly or otherwise) that two or more undertakings will engage in certain prohibited cartel arrangements, namely price-fixing, market-sharing, bid-rigging, or limiting output. Any such arrangements must have taken place in the UK.

As explained further below, the effects of this change are mitigated to some extent by the introduction of new exceptions (concerning notification of customers, publication of arrangements, complying with a legal requirement) and defences (including that the person accused did not intend to conceal information from customers or the CMA, and sought legal advice). Nonetheless, the changes provide greater scope for prosecutions and