Auctioneers face new commission enquiries

The decisions follow a recent development in the investigation by the United States Justice Department when Christie's submitted documents and offered to co-operate in return for conditional amnesty in any criminal proceedings.

A spokesman for the Office of Fair Trading told the Antiques Trade Gazette: “ We are making enquiries into whether there are similar concerns regarding Christie's and Sotheby's in the UK, but it is too early to expand on that issue.” Investigations in the USA are more advanced.

The US enquiries into anti-competitive business conduct by auction houses and dealers have been underway at least since April 25, 1997, when truckloads of documents were taken from the New York salerooms of Sotheby's and Christie's by federal prosecutors from the anti-trust division of the Justice Department.

The prosecutors were looking for evidence of meetings or discussions which would prove collusion in the setting of premiums charged to buyers and sellers at auction, thereby constituting “illegal restraints of trade” under Section 1 of the 1890 Sherman Act.

Department attorneys have also sought to discover whether or not dealers had colluded to depress prices at auction by bidding in 'rings'.

But it was the auctioneering side of the investigation that came to the fore on January 28, when Christie's announced that its new owner François Pinault recently became aware of “possible conduct” within the company prior to the appointment of the new chief executive Ed Dolman, who took over the company following the unexpected departure of Christopher Davidge last month.

In return for disclosing this information and co-operating with the anti-trust investigation, Christie's has been granted 'conditional amnesty' from the Department of Justice as part of a 'corporate leniency policy' which may exempt the company from criminal prosecution, but not civil prosecution.

News of Christie's disclosures sent Sotheby's stock price tumbling, but it has also prompted class-action law suits to be filed against both auction houses by two leading collectors, Herbert Black and Morris Zabarkus.

According to reports in the Wall Street Journal and Toronto Globe and Mail, Mr Black's suit alleges that Sotheby's, Christie's and other unnamed galleries and auction houses “agreed to cease competing with one another on the basis of price.”

The introduction of common buyers' and sellers' commissions has been the cause of controversy since the 1970s, but allegations of collusion have never been tested in the courts.

In November 1992, Sotheby's upped its premium to 15 per cent on the first £30,000 of the hammer price and by the end of the year Christie's had raised its premium to an identical level.

The two firms, with an effective duopoly on the world market in antique auctions, had always competed with one another for consignments by negotiating premiums charged to vendors, but in March 1995, Christie's took the lead by fixing commission rates for vendors, with Sotheby's following suit a month later with identical rates for goods priced between £60,000 and £3m at auction.

The only serious legal action on the buyer's premium issue was launched by several London dealers, backed by BADA and SLAD, against Sotheby's and Christie's in 1981, claiming the two auction houses had contravened the Restrictive Practices Act by illegally colluding to introduce the buyer's premium (at the same flat rate of 10 per cent) at about the same time in 1975.

The auction houses denied that there was any collusion and the plaintiffs withdrew their action after protracted talks in which Sotheby's and Christie's agreed to pay part of their costs and consider reducing the premium.

At the time of the legal action neither auction house was obliged to release documents which might have implicated them in collusive agreements. But the 1998 Competition Act, which comes into effect on March 1 this year and will guide the Office of Fair Trading in any new investigation, will give authorities the right to enter premises and demand documents if there are “reasonable grounds” for suspecting “agreements between undertakings ... which prevent, restrict or distort competition”, or indeed “abuse by one or more undertakings, of a dominant position in a market which may affect trade within the UK”.

A major weapon to enforce the act is a leniency policy, similar to that sought by Christie's in the US investigation, which may offer immunity from financial penalties.

The penalties for infringing the UK Competition act are more lenient than those for breaching the anti-trust laws of the US. Corporations would be liable for a maximum penalty of 10 per cent of UK turnover for each year of the infringement, up to a maximum of three years; individuals would also be charged with financial penalties.

In America, individuals can receive up to three years in jail, while corporations can be charged as much as twice their illegal gains, or twice the losses of their victims.

The benchmark of recent years was the $100m fine slapped on the Archer-Daniels-Midland Company, Decatur III, in 1996.