Economic and Legal Implications for the EU Member States
Edited by Katalin J. Cseres, Maarten Pieter Schinkel and Floris O.W. Vogelaar
Chapter 3: Competition Policy and Cartels: The Design of Remedies
3. Competition policy and cartels: the design of remedies 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...
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