Competition Law Review, Vol. 4, No. 1, pp. 7-40, 2007
34 Pages Posted: 7 Nov 2007
This article formulates a principled criminalisation framework in order to argue for the necessity of criminal sanctions as punishment under EC cartel law. It examines the traditional rationales of criminal punishment, demonstrating their relative merits and demerits. The theoretical usefulness of an economic model of analysis concerning the employment of criminal antitrust sanctions is highlighted in the process. The examined theories are then used to establish a 'model of criminalisation', which consists of a number of principles to be adhered to, and a set of (limiting) criteria to be considered, when deciding whether to criminalise certain (cartel) behaviour. This principled criminalisation framework is then employed to argue that a personal criminal sanction for cartel activity is necessary if one genuinely wishes to enforce the law in this area. More specifically, it is argued, first, that the current use of non-criminal sanctions within the EC concerning such arrangements leads to ineffective law enforcement of an activity that causes serious harm to consumers and the economy; and, second, that this deficiency should be rectified through the use of criminal punishment as reinforcement for other less controversial antitrust law enforcement tools, such as fines, director disqualifications, and private enforcement actions.
Keywords: Cartels, Competition Law, Antitrust, Criminal Sanctions
JEL Classification: K14, K2, L41
Suggested Citation: Suggested Citation
Whelan, Peter, A Principled Argument for Personal Criminal Sanctions as Punishment Under EC Cartel Law. Competition Law Review, Vol. 4, No. 1, pp. 7-40, 2007 . Available at SSRN: https://ssrn.com/abstract=1027925