Criminalization of Competition Law Enforcement
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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.
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Chapter 3: Competition Policy and Cartels: The Design of Remedies

William E. Kovacic


William E. Kovacic1 1 INTRODUCTION The impact of a competition law, or any other statute, depends on how its commands are implemented. The choice of measures to enforce the law is just as significant as the definition of what the law forbids. In deciding whether to obey a competition law, affected parties ordinarily ask what will happen if they transgress. Knowing how the law is likely to detect, prosecute, and punish wrongdoers is fundamental to answering the question. This chapter examines what jurisdictions should consider in designing remedies for violations of competition laws that forbid cartels. It analyses the choice of sanctions as one of several adjustments to an enforcement mechanism that can elicit greater compliance with a law’s anti-cartel provisions. The chapter discusses issues of sequencing that a jurisdiction should address when it augments sanctions, particularly when it decides to treat antitrust offences as crimes. The chapter uses the experience of anti-cartel policy in the United States to underscore the strong relationship between enhancements in methods for detecting cartels and the strengthening of sanctions. One of the chapter’s central themes is that the sources of insight for the proper development of a competition policy program come from several disciplines – notably from history and political science as well as from the fields of economics and law that so often figure in discussions about antitrust issues. The creation of criminal sanctions as an element of competition policy can be effective only if the competition agency builds political acceptance for...

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