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 4: Is Criminalization of EU Competition Law the Answer?

Wouter P.J. Wils


Wouter P.J. Wils1 1 INTRODUCTION Given the general topic of this conference (‘Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States’) and the specific topic assigned to me (‘Is Criminalization of EU Competition Law the Answer?’), I will address the following five questions in this chapter. First, what do we mean by ‘criminalization’, or ‘criminal’ enforcement (as opposed to public enforcement of a ‘civil’ or ‘administrative’ nature)? Second, is there a tendency in the EU Member States to criminalize antitrust enforcement (in comparison with US antitrust enforcement and with antitrust enforcement at the level of the EU institutions)? Third, is criminal antitrust enforcement, more specifically imprisonment, desirable (in general, irrespective of whether it takes places at the level of the Member States or of the EU institutions, or whether it is harmonized at EU level)? Fourth, is it problematic that antitrust enforcement is criminalized at the level of individual EU Member States without parallel criminalization at the level of the EU institutions or without EU harmonization? Fifth, would it be legally possible to criminalize antitrust enforcement at the level of the EU institutions, or to have EU harmonization of criminal antitrust enforcement in the Member States? I should stress that this chapter contains merely my own current thinking on these questions. None of the opinions expressed should be construed as reflecting the views of the European Commission or its Legal Service. 2 2.1...

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