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Part II Legal Challenges, 7 European Antitrust Criminalization and the Challenge of Legal Certainty

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: 27 June 2022

Cartels — Application of EU competition rules — European Convention on Human Rights

This chapter explores the substantive aspect of the human rights-related legal challenge to European antitrust criminalization, focusing on the impact in this context of the principle of legal certainty. Comprehensibility is advisable with any project of antitrust criminalization. When criminal antitrust sanctions are at issue, such comprehensibility is not merely advisable for theoretical or practical reasons, but is in fact a strict legal requirement: comprehensibility—as one element of the wider principle of legal certainty—is mandated by European human rights law. The examination of the challenge of legal certainty for antitrust criminalization is undertaken from three perspectives, namely: (i) legal certainty and the concept of a criminal antitrust offence; (ii) legal certainty and the substance of a criminal antitrust offence; and (iii) legal certainty and the existence of a criminal antitrust offence.

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