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Part I Theoretical Challenges, 4 European Antitrust Criminalization and the Challenge of Retribution 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, 2021. All Rights Reserved.date: 01 March 2021

Organisational aspects — Fines for cartels — Application of EU competition rules

This chapter examines the criminal punishment theory of retribution, taking a two-step approach. The first step involves the establishment of a framework to determine the ‘moral content’ of a given behaviour. The American legal theorist Stuart Green presents a useful tripartite framework to determine moral content. According to this framework, moral content can be analysed by examining three interrelated concepts: culpability; social harmfulness; and moral wrongfulness. The second step applies that framework to cartel activity and in the process examines the extent to which retribution theory can be used to justify the imposition of personal criminal antitrust sanctions, as well as the specific limitations of a retribution-based antitrust criminalization argument.

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