Deterring the State Versus the Firm: Soft and Hard Deterrence Regimes in EU Law

47 Pages Posted: 4 May 2016

See all articles by Sanja Bogojević

Sanja Bogojević

Lund University

Nicolas Petit

European University Institute - Department of Law (LAW)

Date Written: February 11, 2016

Abstract

This paper sheds light on the existence of a differential deterrence regime in EU law, depending on whether the State or the firm is the addressee of a legal obligation. To that end, we review two areas of EU law – environmental law and competition law. Both disciplines employ fines to deter the State and the firm respectively from violating their specific duties under the Treaty: the ‘duty to transpose’ with regard to State obligation under environmental law, and the ‘duty to compete’ in relation to firms under competition law. We show how the deterrence regime is softer on the State in at least three ways: functionally (purpose ascribed to the penalties), operationally (method followed to set and liquidate the penalty), and procedurally (requiring prior judicial approval as opposed to having immediate applicability). These findings are significant for two reasons: they suggest a State versus firm discrepancy in the EU’s deterrence regime, and serve to initiate a debate on the desirability of such a divide.

Keywords: Deterrence; sanctions; penalties; State; firm; environmental law; competition law; antitrust; European law

JEL Classification: K21; K32; K42; K00; H00

Suggested Citation

Bogojević, Sanja and Petit, Nicolas, Deterring the State Versus the Firm: Soft and Hard Deterrence Regimes in EU Law (February 11, 2016). Columbia Journal of European Law, Vol. 23, No. 1, 2016, Available at SSRN: https://ssrn.com/abstract=2774875

Sanja Bogojević

Lund University ( email )

Lilla Gråbrödersgatan 4
Lund, SC Skane SE-22100
Sweden

Nicolas Petit (Contact Author)

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
Italy

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