Monday, September 22, 2008
Posted by D. Daniel Sokol
A new piece by Peter Whelan of the British Institute of International and Comparative Law is Contemplating the Future: Personal Criminal Sanctions for Infringements of EC Competition Law.
ABSTRACT: For hard-core cartels, criminal sanctions are not only necessary, in the sense that they help ensure optimal deterrence, they are also appropriate, especially given the secretive and typically dishonest nature of this particular activity. Criminal punishment should not extend however to the enforcement of Article 82 EC or to the 'non-hard-core' agreements under Article 81. In these cases only administrative and/or civil/private punishment should be imposed. In terms of law alone, the EC Treaty framework establishing the EC competition regime is arguably theoretically capable of providing a legal basis for EC criminalisation. Reasons can also be advanced as to why criminal sanctions should in practice be provided and/or imposed at that level. But any effort at EC criminalisation would involve significant legal and political challenges, and perhaps popular censure. It is principally for this pragmatic reason that criminalisation is best suited to national level, at least for the foreseeable future.