Cartels’ little helpers: A comparative study of the case law regarding the facilitators of collusion in Europe, United States and South America

Abstract

In order to avoid detection and punishment, cartels often recruit third parties to help them organize, execute, and disguise their anticompetitive practices. These third parties may take the form of consultancy firms, guilds or professional advisors that do not perform an economic activity in the market where collusion takes place. In this paper, we analyze how national competition authorities and legislators have dealt with the emergence of cartels facilitators in South America, to find that their enforcement activities have followed a very similar path than the one pursued by the EU Commission and Court of Justice and the United States Department of Justice. Some South American jurisdictions have even taken a step forward in considering the prosecution of public officials for helping or promoting cartels. The role of cartels’ facilitators might become even more relevant in the near future with the assistance of algorithms and blockchain, making it more necessary to broaden the scope of application of Competition Law.