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Christopher Harding

The phenomenon of financial misconduct, delinquency and criminality is highly problematic, especially in the transnational European and international context. Difficulties of vocabulary, definition and conceptualisation complicate the subject, as does the accessibility of the subject-matter itself. Moreover, the EC/EU interest in an involvement in this area has been incremental, haphazard an opportunistic. Thus the historical route to the present position has been diverse and fragmented: la lutte anti-fraud, cartel regulation, and the emergence of ‘EU criminal law’ under the aegis of the AFSJ. Consequently, there are major uncertainties regarding the material scope of the subject (the conduct that should be controlled and regulated), the agency of infringement and its impact and victimhood, and the use of criminal law in a context of diverse national traditions, cultures and preferences regarding strategies of legal control. The outcome to date has been an unsystematic set of interventions, lacking an overarching plan, vision or sense of direction. A bold solution would be to find a greenfield site to construct an innovative, coherent and legitimate response to this challenging phenomenon of financial delinquency.

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Christopher Harding

The link between EU criminal law and the EU regulation of competition is a potentially significant but still largely unexplored matter, in both theoretical and practical terms. In formal terms, there is no cross-reference between the two, and no obvious linkage. But closer acquaintance with the subject raises the question of how, first, the burgeoning development of national criminal law for purposes of enforcing some areas of competition law and policy and, secondly, the highly significant and original EU own-enforcement of its competition rules, which has developed some clearly repressive and penal features without a formal label of criminal law, fit with emergent EU criminal law. The discussion here first of all explores the relevance and use of the methods and concepts of criminal law in competition governance, especially in the European context, and then returns to this matter of the present and possible future relationship between EU criminal law and the competition regime.