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Part II Legal Challenges, 6 European Antitrust Criminalization and the Second Challenge of Due Process: Imposing Criminal Sanctions alongside Civil Sanctions

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 evaluates the ‘additional dynamic’ contention which holds that the introduction of criminal antitrust sanctions in a particular jurisdiction does not preclude the imposition of civil/administrative sanctions alongside criminal sanctions for a given cartel. After establishing the validity of this contention, the chapter determines the actual impact of the contention, and hence the extent of the challenge presented by this aspect of the legal requirement of due process. A potential due process issue was identified with the exchange of information from administrative antitrust regimes to criminal antitrust regimes. The second identified issue of due process concerned ‘double jeopardy’. It was argued that this issue becomes relevant due to: (i) the validity of the ‘additional dynamic’ contention; and (ii) the fact that an individual can in fact constitute an ‘undertaking’ for the purposes of EU law. The final identified issue of due process related to concurrent proceedings.

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