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Part III Practical Challenges, 8 European Antitrust Criminalization and the First Challenge of Design: Defining the Criminal Cartel Offence

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, 2015. All Rights Reserved.date: 20 September 2020

Cartels — Fines for cartels — Application of EU competition rules

This chapter analyses the first challenge of design for European antitrust criminalization: defining the criminal cartel offence itself. There are two problematic issues concerning the definition of a criminal cartel offence, both of which must be understood—if not resolved—by legislatures that are serious about the effective enforcement of their criminal cartel laws. First, the impact of Regulation 1/2003 on the design and operation of a national cartel offence needs to be articulated. This is an issue which is unique to the EU Member States. Second, the legislature which is responsible for drafting a given national criminal cartel law is required to make a decision about how to deal with ‘acceptable’ cartel activity. The challenge for the drafters of a criminal cartel offence is how to ensure that 'acceptable' cartel activity is carved out of the criminal offence without making the offence unworkable in practice.

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