Combinations, Concerted Practices and Cartels: Adopting the Concept of Conspiracy in European Community Competition Law Symposium on European Competition Law

Joshua, Julian M., Jordan, Sarah | January 1, 2004

This article charts the progress of, and the vicissitudes faced by, the incorporation into the European Community legal order of the peculiarly common law concept of conspiracy as the vehicle not only for analytical purposes, by characterizing full-blown cartels as “agreements” in the sense of Article 81 of the EC Treaty, but also to resolve the multiplicity of evidential issues presented by complex, pernicious and secretive behavior. The article also shows how the uncovering of deliberate and secretive business delinquency, practiced at the highest levels in some of Europe’s most respected corporations and summed up by the negative connotations of the concept of “conspiracy” has itself subtly contributed to altering hitherto tolerant European perceptions of cartel conduct, and has moved the paradigm for legal control of cartels in Europe from an administratively-minded concertation on the economic aspects to a conduct-based test that focuses on delinquency and recidivism.