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 5: How Strong is the Case for Criminal Sanctions in Cartel Cases?

Andreas P. Reindl


Andreas P. Reindl1 1 INTRODUCTION This contribution provides comments on Bill Kovacic’s and Wouter Wils’ chapters. The comments will build primarily on the work of the OECD in relation to the role of sanctions in effective cartel enforcement, which in turn reflects the experiences of OECD member countries and observers to the OECD Competition Committee. The OECD’s work on cartels and effective anti-cartel enforcement provides support for criminal anti-cartel enforcement, including criminal sanctions against individuals. OECD publications such as the Second Cartel Report,2 have documented that financial fines imposed on corporate cartel participants are virtually always too low to effectively deter cartels. These findings have led to the conclusion that criminal sanctions for individuals, including jail time, can be a useful complement to corporate sanctions. The Second Cartel Report therefore recommended that member countries consider introducing criminal sanctions against individuals to more effectively deter cartel activity.3 A careful study of the OECD’s work reminds us, however, that the case for a wider use of criminal sanctions4 is less straightforward than some, including Wouter Wils in his chapter, have suggested. A criminal sanctions regime not only has potential benefits, but also comes with certain costs. A range of country-specific circumstances would determine what the net effective of a criminal sanctions regime would be, and we might overestimate the potential benefits and/or underestimate the potential costs associated with wider use of criminal sanctions in the European jurisdictions. Countries might find that adopting other measures might perhaps be...

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