Crisis Cartels : For Better or for Worse?

Crisis cartels are one of the most challenging issues for competition authorities, who need to strike a balance between strictly antitrust considerations and non-economic government objectives, such as social welfare and survival of entire market sectors. The current global recession has made itself evident also by the reappearance of such cartels, a recent one being the crisis cartel in the fish-farming sector in Greece, and they can be expected to increase due to the prolonged downturn. The existing EC case-law on crisis cartels does not appear to have departed from a traditional Art. 101 TFEU approach, irrespective of the fact that the economic and social circumstances under which such cartels were formed in the past seem to have evolved markedly. Unless EC courts and national competition authorities smartly adapt to the present economic circumstances and reconsider some of the formalistic approaches adopted in the past, it is almost certain that crisis cartels, expected to increase due to the prolonged recession, will uncontrollably develop below the radar screen of competition authorities, to the obvious detriment of the market, competition conditions, and, finally, consumers. The present article is organized as follows. First, there is a presentation of the facts and the competition assessment of the fish-farming cartel formed between the five strongest market players in Greece. The next section presents the approach adopted by EC case law on crisis cartels, and attempts to evaluate its contemporary relevance to the current recession. Subsequently, the role of competition authorities in times of crisis is examined, followed by the main alternatives to crisis cartels. The next section explains the need for an effects-based approach to crisis cartels, and the last section concludes