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Criminalization of Competition Law Enforcement

Criminalization of Competition Law Enforcement

Economic and Legal Implications for the EU Member States

Edited by Katalin J. Cseres, Maarten Pieter Schinkel and Floris O.W. Vogelaar

This timely book brings together contributions from prominent scholars and practitioners to the ongoing debate on the criminalization of competition law enforcement. Recognizing that existing remedies and sanctions may be insufficient to deter breaches of competition law, several EU Member States have followed the US example and introduced pecuniary penalties for executives, professional disqualification orders, and even jail sentences. Addressing issues such as unsolved legal puzzles, standard of proof, leniency programs and internal cartel stability, this book is a marker for future policy debate.

Chapter 11: Optimal Pecuniary Sanctions and the US Sentencing and EU Fining Guidelines

Nonthika Wehmhörner

Subjects: law - academic, competition and antitrust law


1 Nonthika Wehmhörner 1 INTRODUCTION In a recent speech to the European Parliament, Neelie Kroes, Commissioner in charge of Competition Policy, announced that DG Competition is working on identifying the scope for enhancing the current fining guidelines in terms of deterrence and transparency.2 Additionally, revamped leniency programs in 1993 in the US and in 2002 in the EU have led to a large increase in the number of cases investigated and in fines collected.3 Figure 11.1 shows the increase in annual fine revenue, with recent ‘record-breaking’ EC fines such as the fine imposed on Microsoft (nearly €500 million) in 2004 or on Hoffman La Roche (€497 million) in 2001 standing out. Although large fines are also imposed in the US such as the fine imposed on Hoffman La Roche (US$500 million) and Infineon Technologies AG (US$160 million), fine revenue in the EC have been higher than those collected by the US Department of Justice (DOJ) during the last couple of years.4 Other sources have confirmed that this is true not just in terms of the total fines imposed but also in terms of the level of fines in proportion to the amount of commerce affected.5 One reason for the difference in fine revenue is that fines are only a part of the arsenal used in the US against price fixing. Other remedies include restitution, disgorgement, civil damages and criminal penalties imposed on individuals. In general, annual fine revenue collected depends on several factors such as...

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