Economic and Legal Implications for the EU Member States
Edited by Katalin J. Cseres, Maarten Pieter Schinkel and Floris O.W. Vogelaar
Chapter 4: Is Criminalization of EU Competition Law the Answer?
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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