Monday, February 24, 2014

A Criminal Perspective on Antitrust Practices

Ioana Curt and Alexandra Pop, Babes-Bolyai University offer A Criminal Perspective on Antitrust Practices.

ABSTRACT: The last ten years have witnessed significant development of competition law in Europe as well as further a field: from the modernisation reforms in the EU, to the adoption of groundbreaking decisions in the US federal courts.The present study has set its aim to clarify the concept and possible interpretation quandaries revolving around antitrust practices, offering a penal perspective on the matter.

The first part of the article deals with the concept of antitrust practices by presenting the reasons why this negative behaviour should be criminalised. Also, the writers discuss whether criminal law is the best solution for overseeing the competition scene and putting an end to these misdemeanors, or should the application of administrative or contraventional fines suffice in contriving this desideratum.The paper can also be seen as mirroring the tension between the ‘old’ and the ‘new’, in the search for innovative responses to the current challenges. Moving on, the authors indicate the pros and cons of our current law system, alongside providing a short glimpse of some analogous european legal provisions, doctrinal views and case-law. After scrutinizing all the basic issues surrounding the concept of antitrust provisions, the analysis of the criminal provision of article 60(1) enters the spotlight. As shown by the authors, the premises of retaining this criminal provision commend the existence of an antitrust practice administered by at least two entities, and which implies an agreement aimed at restricting, impeding or distorting the competition scene. The writers then tally the actual activities encompassed by this criminal provision, alongside presenting it’s elementary components. A series of problems are the pointed-out, many of which originate from the fact that our legal provision was copied mot-à-mot from it’s French omologue. The main problematic issues tackled by the authors regard the author, the actus reus and the mens rea of the crime at hand. Further on, the paper treats the so-called criminal provision stated by article 62, showing that it is in fact nothing other than a warning provision, because it’s area of application is limited by other existing legal provisions from the Penal Code. The authors’ opinion on the matter is bolstered by Law no. 187/2012, regarding the application of the New Penal Code, within which it is expressly stated that the provision at hand shall be revoked. Both during and subsequent to these examinations, the authors are aptly devoted to proposing a series of compulsory changes that would remodel Law no. 21/1996 into a suitable “guardian” of the free competition scene.

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