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 15: Cartel Penalties and Damages in Ireland: Criminalization and the Case for Custodial Sentences

Terry Calvani


Terry Calvani1 1 INTRODUCTION Price-fixing, and related ‘hard-core’ cartel behaviour,2 are theft and recognized to be such under Irish law. The Competition Act, 2002 addresses price-fixing in two ways: first, it is a crime on indictment and the Act vests the Competition Authority and the Director of Public Prosecutions with the power to investigate and prosecute respectively.3 Upon conviction, individuals may be sentenced to a maximum of five years imprisonment and fined up to €4,000,000.4 Second, it creates a private right of action to compensate those injured by cartel conduct.5 Thus, the law focuses on both deterrence6 and compensation. Deterrence and compensation are both appropriate objectives. Although fines and compensation payments can provide some deterrence, only custodial sentences are likely to be effective. Fines and compensatory damages would have to be much higher than current levels to effectively deter. Such an increase is politically infeasible. Thus, satisfaction of the deterrence objective is contingent on imposition of custodial sentences. Compensation, while a laudatory objective, is difficult to achieve. Interests injured by anticompetitive cartel behaviour run from the economy generally to a range of buyers and sellers. Identification of injured parties and measurement of the amount of injury can be very difficult. Courts in some jurisdictions have applied arbitrary rules in order to provide an element of compensation in an administratively efficient way. As a result, compensation of injured parties has been achieved only in a very rough sense. Accordingly, deterrence ought be the primary...

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