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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 16: Enforcement of Antitrust Law: The Way from Criminal Individual Punishment to Semi-Penal Sanctions in Austria

Peter Lewisch

Subjects: law - academic, competition and antitrust law


Peter Lewisch 1 INTRODUCTION This chapter is about the institutional comparison of alternative enforcement regimes of antitrust law. The chapter analyses the incentives for enforcement of cartel violations in abstracto in Section 2. It discusses the Austrian case as an illustration for a replacement of individual criminal sanctions by ‘neutral’ fines in Section 3, and ends with a normative discussion of the merits of (re-)criminalization in Section 4. 2 2.1 THE ECONOMICS OF ENFORCEMENT OF ANTITRUST LAW The Nature of Cartels Antitrust enforcement aims at combating cartels. Its scope can, therefore, best be derived from the underlying incentives to establish and maintain cartels. A cartel is an arrangement by which its members agree to constrain supply and thereby to increase prices above their competitive level. Benefits from such an arrangement focus on the cartel members, while harm is dispersed among the consumers.1 Despite the existence of these focussed benefits, cartels are inherently unstable due to their underlying ‘prisoner’s dilemma structure’: For each member of the cartel, defection on the cartel agreement constitutes the dominant choice (if the others break the cartel, it is better to violate oneself; if the others respect the agreement, it is better to be the only cheater). Therefore, cartels are doomed to ultimate breakdown. 290 Cseres 03 chap11 290 28/8/06 08:59:57 Enforcement of antitrust law 291 Still, depending on the market structure, and in particular on the monitoring and enforcement costs of spotting and punishing defectors, members may successfully stabilize socially...

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