The Criminalization of European Cartel Enforcement: Theoretical, Legal, and Practical Challenges

Hardcover | September 7, 2014

byPeter Whelan

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Cartel activity is prohibited under EU law by virtue of Article 101(1) of the Treaty on the Functioning of the European Union. Firms that violate this provision face severe punishment from those entities responsible for enforcing EU competition law: the European Commission, the nationalcompetition authorities, and the national courts. Stiff fines are regularly imposed on firms by these entities; such firm-focused punishment is an established feature of the antitrust enforcement landscape within the EU. In recent years, however, focus has also been placed on the individuals withinthe firms responsible for the cartel activity. It is increasingly recognized that punishment for cartel activity should be individual-focused as well as firm-focused. Accordingly, a growing tendency to criminalize cartel activity can be observed in the EU Member States.The existence of such criminal sanctions within the EU presents a number of crucial challenges that need to be met if the underlying enforcement objectives are to be achieved in practice without violating prevailing legal norms. For a start, given the severe consequences of a custodial sentence, theemployment of criminal antitrust punishment must be justifiable in principle: one must have a robust normative framework rationalizing the existence of criminal cartel sanctions. Second, for it to be legitimate, antitrust criminalization should only occur in a manner that respects the mandatorylegalities applicable to the European jurisdiction in question. These include the due process rights of the accused and the principle of legal certainty. Finally, the correct practical measures (such as a criminal leniency policy and a correctly defined criminal cartel offence) need to be in placein order to ensure that the employment of criminal antitrust punishment actually achieves its aims while maintaining its legitimacy.These three particular challenges can be conceptualized respectively as the theoretical, legal, and practical challenges of European antitrust criminalization. This book analyses these three crucial challenges so that the complexity of the process of European antitrust criminalization can beunderstood more accurately. In doing so, this book acknowledges that the three challenges should not be considered in isolation. In fact there is a dynamic relationship between the theoretical, legal, and practical challenges of European antitrust criminalization and an effective antitrustcriminalization policy is one which recognizes and respects this complex interaction.

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Cartel activity is prohibited under EU law by virtue of Article 101(1) of the Treaty on the Functioning of the European Union. Firms that violate this provision face severe punishment from those entities responsible for enforcing EU competition law: the European Commission, the nationalcompetition authorities, and the national courts. ...

Dr Peter Whelan is an Associate Professor in Law at the School of Law, University of Leeds, where he is the Deputy Director of the Centre for Criminal Justice Studies. He has degrees in law from Trinity College Dublin and a PhD in Law from St John's College, University of Cambridge. A qualified US Attorney-at-Law, Peter is an expert i...

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Format:HardcoverDimensions:416 pages, 9.21 × 6.14 × 0.98 inPublished:September 7, 2014Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199670064

ISBN - 13:9780199670062

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Table of Contents

1. An Introduction to European Antitrust Criminalization and Its Theoretical, Legal, and Practical ChallengesPart I: Theoretical Challenges2. Potential Theoretical Justifications for European Antitrust Criminalization3. European Antitrust Criminalization and the Challenge of Deterrence Theory4. European Antitrust Criminalization and the Challenge of Retribution TheoryPart II: Legal Challenges5. European Antitrust Criminalization and the First Challenge of Due Process: A 'Strengthening of Rights' in Favour of the Accused?6. European Antitrust Criminalization and the Second Challenge of Due Process: Imposing Criminal Sanctions Alongside Civil Sanctions7. European Antitrust Criminalization and the Challenge of Legal CertaintyPart III: Practical Challenges8. European Antitrust Criminalization and the First Challenge of Design - Defining the Criminal Cartel Offence9. European Antitrust Criminalization and the Second Challenge of Design - Understanding the Complexities of Leniency/Immunity10. European Antitrust Criminalization and the Third Challenge of Design - Identifying the Desirable Enforcement StrategiesConclusion11. Concluding Remarks on the Theoretical, Legal and Practical Challenges of European Antitrust CriminalizationAnnexes:Annex I: Text of Article 101 TFEUAnnex II: Text of the (Original) UK Cartel Offence and Section 47 of the Enterprise and Regulatory Reform Act 2013Annex III: Diagrammatical Representation of the Social Harm Due to Cartel ActivityBibliography