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The Criminalization of European Cartel Enforcement

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

Author: Peter Whelan
Publisher: Oxford University Press
ISBN: 9780199670062
Published In: August 2014
Format: Hardback , 400 pages
Jurisdiction: European Union ? Disclaimer:
Countri(es) stated herein are used as reference only

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The first monograph-length study of the challenges inherent in criminalizing cartel activity in the EU
Provides detailed analysis of the theoretical, legal, and practical difficulties facing European antitrust criminalization
Details the extent to which the problematic nature of antitrust criminalization can be overcome in practice

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 national competition 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 within the 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, the employment 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 mandatory legalities 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 place in 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 be understood 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 antitrust criminalization policy is one which recognizes and respects this complex interaction.

Readership: Academics and postgraduate students interested in European law and antitrust law: lawyers, officials, economists, and regulators working on cartels

1: An Introduction to European Antitrust Criminalization and Its Theoretical, Legal, and Practical Challenges
Part I: Theoretical Challenges
2: Potential Theoretical Justifications for European Antitrust Criminalization
3: European Antitrust Criminalization and the Challenge of Deterrence Theory
4: European Antitrust Criminalization and the Challenge of Retribution Theory
Part II: Legal Challenges
5: 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 Sanctions
7: European Antitrust Criminalization and the Challenge of Legal Certainty
Part III: Practical Challenges
8: European Antitrust Criminalization and the First Challenge of Design - Defining the Criminal Cartel Offence
9: European Antitrust Criminalization and the Second Challenge of Design - Understanding the Complexities of Leniency/Immunity
10: European Antitrust Criminalization and the Third Challenge of Design - Identifying the Desirable Enforcement Strategies
Conclusion
11: Concluding Remarks on the Theoretical, Legal and Practical Challenges of European Antitrust Criminalization
Annexes
Annex I: Text of Article 101 TFEU
Annex II: Text of the (Original) UK Cartel Offence and Section 47 of the Enterprise and Regulatory Reform Act 2013
Annex III: Diagrammatical Representation of the Social Harm Due to Cartel Activity
Bibliography

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 in competition law and sits on the Editorial Boards of World Competition and the Journal of Antitrust Enforcement. Peter has published widely in specialist competition law journals, as well as in generalist law journals (including Oxford Journal of Legal Studies, Cambridge Law Journal and Modern Law Review). He has provided oral evidence on cartel criminalization to the New Zealand Parliament and was recently appointed as an International Expert by the Finnish Competition and Consumer Authority to advise it on the desirability of introducing criminal cartel sanctions in Finland. Peter is also the Managing Editor of Oxford Competition Law.