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Part I Theoretical Challenges, 3 European Antitrust Criminalization and the Challenge of Deterrence Theory

Peter Whelan Dr

From: The Criminalization of European Cartel Enforcement: Theoretical, Legal, and Practical Challenges

Peter Whelan

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 04 July 2022

Cartels — Fines for cartels — Application of EU competition rules

This chapter focuses on the criminal punishment theory of deterrence. A strong deterrence-based criminalization argument can be constructed concerning cartel activity: imprisonment helps, inter alia, to overcome the significant problems associated with optimally deterrent cartel fine. Arguably, then, deterrence theory can be relied upon as a foundation for antitrust criminalization. However, the deterrence-based criminalization argument is not as robust as some legal commentators would have one believe; in fact, it suffers from a number of potential limitations. Specifically, the case in favour of the employment of criminal antitrust sanctions to deter cartel activity is vulnerable to the extent that one can demonstrate that: (i) cartel activity is morally neutral conduct; (ii) undertakings are risk averse; (iii) undertakings/individuals do not act rationally; and (iv) personal criminal sanctions are incapable of generating more benefits than costs.

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