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View translated passages only
Oxford Law Citator
Contents
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Preliminary Material
Dedication
Series Editors’ Preface
Preface
Acknowledgements
Table of Contents
List of Abbreviations
Table of Cases
A Australia
B Canada
C Eu Level
(a) European Commission
(b) General Court
(c) Court of Justice
D European Convention on Human Rights
(a) European Commission on Human Rights
(b) European Court of Human Rights
E Ireland
F United Kingdom
G United States
Table of Instruments
A Treaties
B Eu Regulations/Framework Decisions
C Eu Competition Notices
D Legislation
(a) Australia
(b) Canada
(c) Ireland
(d) Germany
(e) New Zealand
(f) United Kingdom
(g) United States
Note to the Reader
Main Text
Introduction
1 An Introduction to European Antitrust Criminalization and Its Theoretical, Legal, and Practical Challenges
A Background and Context to the Book: ‘The European Antitrust Criminalization Debate’
B Aim of the Book
C Scope of the Book
(a) Definitions employed
(b) Limitations imposed upon the scope
D Methodology Employed in the Book
(a) Critical analysis of the theoretical, legal, and practical challenges
(i) Each category of challenges is analysed separately
(ii) Theoretical challenges analysed before legal and practical challenges
(iii) Legal challenges analysed before practical challenges
(iv) Unique aspects of the approach to theoretical challenges
1 A fundamental assumption: finding a workable theoretical justification is not required to proceed to legalities or practicalities
2 Two relevant processes: filtration and application
The process of filtration:
The process of application:
(v) Unique aspects of the approach to legal challenges
1 A preliminary acknowledgement: legalities must be respected
2 Focus of the analysis: two particular types of legal challenge
3 Source of the analysis: the ‘controlling’ legal documents
(vi) Unique aspects of the approach to practical challenges
(vii) The critical analyses are used to identify potential links between the respective challenges
(b) Specific sources relied upon in the book
E Structure and Layout of the Book
(a) Part I: theoretical challenges
(b) Part II: legal challenges
(c) Part III: practical challenges
(d) The concluding chapter: linking the theoretical, legal, and practical challenges
Part I Theoretical Challenges
2 Potential Theoretical Justifications for European Antitrust Criminalization
A Introduction
B Two Relevant Theories of Antitrust Criminalization
(a) Focusing on deterrence and retribution
(b) The concept of deterrence
(i) An economic variant
Rationality:
Efficiency:
(ii) Harm versus gain
(iii) Necessary adjustments
Costs:
Probability of detection and prosecution:
Risk neutrality:
Legal error:
(c) The concept of retribution
(i) ‘Unfair advantage’ and ‘communicative function’ variants
(ii) The principles of proportionality and responsibility
C The Relative Merits and Demerits of the Two Theories
(a) Principal strength of each rationale
(b) Moral considerations
(c) Practical implementation
D The Current Relevance of Both Theories for EU Antitrust Enforcement
(a) The existing enforcement framework
(b) Deterrence theory and EU antitrust enforcement
(c) Retribution and EU antitrust enforcement
E Conclusion
3 European Antitrust Criminalization and the Challenge of Deterrence Theory
A Introduction
B Step 1: Identifying the Deficiencies of the Current Approach to Deterrence
(a) Lack of individual sanctions
(b) Inadequate fines
(c) Lack of adequate condemnation
C Step 2: A ‘Robust’ Criminalization Argument: Employing Criminal Punishment to Rectify the (Deterrence-Related) Deficiencies Identified
(a) Individual punishment
(b) Threat of custodial sentences
(i) Inability to pay
(ii) Individual (financial) responsibility
(iii) Proportional justice
(iv) Deterrence through condemnation
D Step 3: Identifying and Analysing the Limitations of the Criminalization Argument Advanced (and Therefore the Challenge of Deterrence Theory)
(a) The ‘appropriateness’ of criminal antitrust sanctions in the absence of (negative) moral content
(b) The difficulty of applying economic deterrence theory to justify criminalizing cartel activity
(i) The use of empirical data to construct an optimal fine
1 Estimating the gains from a cartel
2 The probability of detecting and prosecuting a cartel
3 Risk neutrality and cartel activity
(ii) The assumption of rationality
(iii) Securing efficient deterrence of anticompetitive behaviour
Severity:
Prosecution levels:
Cooperation:
Imposition of costs:
(c) The lack of an effective alternative
(i) Private enforcement
(ii) Director disqualification
(iii) Negative publicity orders
E Conclusion
4 European Antitrust Criminalization and the Challenge of Retribution Theory
A Introduction
B Step 1: Establishing a Framework to Determine ‘Moral Content’
(a) The tripartite framework
(b) The merits of the framework
C Step 2: Employing the Framework to Examine the Moral Content of Cartel Activity (and Hence the Challenge of a Retribution-Based Criminalization Argument)
(a) Culpability
(b) Social harmfulness
(i) Identifying the social harmfulness of cartel activity
(ii) Problematic issues with the type of social harm identified
1 Acceptance of the value of the free market
2 The challenging nature of the harm due to cartels
(c) Moral wrongfulness
(i) Cartel activity as stealing
(ii) Cartel activity as deception
(iii) Cartel activity as cheating
(d) Moral content and cartel activity: the limitations of a retribution-based antitrust criminalization argument
D Conclusion
Part II Legal Challenges
5 European Antitrust Criminalization and the First Challenge of Due Process: A ‘Strengthening of Rights’ in Favour of the Accused?
A Introduction
B Step 1: Articulating the Legal Framework
(a) Article 6 ECHR
(b) Undeniable application with custodial sanctions
C Step 2: Determining the Validity of the ‘Strengthening of Rights’ Contention
(a) Aspect 1: standard of proof
(b) Aspect 2: right to silence
(c) Aspect 3: division of functions
D Step 3: Determining the Impact of the ‘Strengthening of Rights’ Contention
(a) Direct implications of the ‘strengthening of rights’ contention
(i) Impact upon the effectiveness of antitrust enforcement
(ii) Effects are relevant to both of the theoretical justifications
(b) Compensating for the ‘strengthening of rights’
(i) First proposed solution: increasing the severity of punishment
(ii) Second proposed solution: increasing the detection rates directly
1 Leniency/immunity
2 Bounties
3 Employing leniency/immunity and bounties in a criminal antitrust regime
4 Techniques unique to criminal antitrust regimes
E Conclusion
6 European Antitrust Criminalization and the Second Challenge of Due Process: Imposing Criminal Sanctions alongside Civil Sanctions
A Introduction
B Step 1: Determining the Validity of the ‘Additional Dynamic’ Contention
(a) Inquiries relevant to the determination of validity
(i) National competence to impose criminal and administrative antitrust sanctions
(ii) Diversity of antitrust sanctions across the EU
(iii) EU competence to mandate (and/or to impose) criminal antitrust sanctions
(b) Application of findings to the ‘four manifestations’ to determine the extent of validity
C Step 2: Determining the Impact of the ‘Additional Dynamic’ Contention
(a) Exchange of information
(i) Regulation 1/2003 and the European Competition Network
(ii) Neutralizing potential problems of due process with criminalization within the ECN
1 Article 12(3) of Regulation 1/2003
2 Critically evaluating Article 12(3)
(b) Ne bis in idem
(i) The basic principle
(ii) European antitrust criminalization and the relevance of ne bis in idem
1 Reasons for the potential application of ne bis in idem
2 Further requirements for the actual application of ne bis in idem
(iii) Dealing with ne bis in idem in the context of European antitrust criminalization
(iv) The (negative) consequences of respecting the principle of ne bis in idem
(c) Concurrent proceedings
(i) Two due process-related issues
(ii) Ensuring consistency with due process
(iii) Impact upon the theoretical justifications
1 Impact upon deterrence
2 Impact upon retribution
D Conclusion
7 European Antitrust Criminalization and the Challenge of Legal Certainty
A Introduction
B The Principle of Legal Certainty
C Legal Certainty and the Concept of a Criminal Antitrust Offence
(a) Contrasting cartel activity with other types of anticompetitive conduct
(b) Placing legal certainty in perspective
D Legal Certainty and the Substance of a Criminal Antitrust Offence: Avoiding the Pitfalls of the UK Experience
(a) The (original) UK Cartel Offence: an argument concerning legal certainty and ‘dishonesty’
(i) The definitional element of ‘dishonesty’
(ii) Legal certainty problems with ‘dishonesty’
(b) Evaluating the legal certainty argument
(i) ‘Dishonesty’ and the apparent requirement to point to criminality
(ii) Failure to point to criminality
(iii) Implications of the legal certainty argument
E Legal Certainty and the Existence of a Criminal Antitrust Offence: The Issue of ‘Sleeping Giants’
(a) Legal certainty determining the (non-)existence of criminal antitrust sanctions: the Norris case
(b) Application of the lessons learned in Norris
F Conclusion
Part III Practical Challenges
8 European Antitrust Criminalization and the First Challenge of Design: Defining the Criminal Cartel Offence
A Introduction
B Controlling the Potential (Negative) Impact of Regulation 1/2003
(a) Regulation 1/2003’s potential impact on the definition and operation of the national criminal cartel offence
(i) Impact on definition: Article 3
(ii) Impact on operation: Articles 11(6) and 35
(b) Dealing with the potential impact through legislative drafting
C Resolving the Issue of ‘Acceptable’ Cartel Activity
(a) The central dilemma
(b) ‘Dishonesty’ and its potential role
(c) The BIS consultation and its proposed solution
D Conclusion
9 European Antitrust Criminalization and the Second Challenge of Design: Understanding the Complexities of Leniency/Immunity
A Introduction
B The Co-Existence of Administrative Leniency/Immunity and Criminal Sanctions
(a) Acknowledging the importance of administrative leniency/immunity
(b) The potential negative impact of criminal sanctions upon administrative leniency/immunity programmes
(c) Identifying mechanisms to counteract any negative impact
(i) Creating a criminal immunity policy
(ii) Linking the criminal immunity policy and the administrative leniency/immunity policy
(iii) Dealing with the issue of criminal disclosure
C The Unique Challenges of Criminal Immunity
(a) The Problem of an ‘Immunized Witness’
(b) The issue of cultural opposition
(c) The impact upon the theoretical justifications
D Conclusion
10 European Antitrust Criminalization and the Third Challenge of Design: Identifying the Desirable Enforcement Strategies
A Introduction
B Avoiding the ‘Compliance Trap’
C Ensuring Support from Stakeholders
(a) The difficulty of securing stakeholder support
(b) Strategies to secure stakeholder support
(i) Securing general support for criminal cartel sanctions
(ii) Avoiding jury nullification
(iii) Dealing with judicial reluctance
D Designing the Enforcement Agency/Agencies
E Securing International Cooperation
F Conclusion
Conclusion
11 Concluding Remarks on the Theoretical, Legal, and Practical Challenges of European Antitrust Criminalization
A Introduction
B Antitrust Criminalization Presents Difficult Theoretical Challenges
(a) The challenge of deterrence theory
(b) The challenge of retribution theory
C Antitrust Criminalization Must Overcome Complicated Legal Challenges
(a) The challenge of due process
(i) The ‘strengthening of rights’ contention
(ii) The ‘additional dynamic’ contention
(b) The challenge of legal certainty
D Antitrust Criminalization Must Overcome Complicated Practical Challenges
(a) The first challenge of design—defining the criminal cartel offence
(b) The second challenge of design—understanding the complexities of leniency/immunity
(c) The third challenge of design—identifying the desirable enforcement strategies
E The Theoretical, Legal, and Practical Challenges of European Antitrust Criminalization Cannot Be Analysed in Isolation
(a) Links between the theoretical challenges
(b) Links between the theoretical and legal challenges
(c) Additional links between the theoretical and legal challenges and the practical challenges
F Final Comments: Suggestions for Future Research
Further Material
Annexes and Bibliography
Annex I Text of Article 101 TFEU
Article 101 TFEU (ex Article 81 TEC)
Annex II Text of the (Original) UK Cartel Offence and Section 47 of the Enterprise and Regulatory Reform Act 2013
Text of the (Original) UK Cartel Offence in the Enterprise Act 2002
Section 47 of the Enterprise and Regulatory Reform Act 2013
Annex III Diagrammatical Representation of the Social Harm Due to Cartel Activity
Bibliography
Index
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List of Abbreviations
Peter Whelan Dr
From:
The Criminalization of European Cartel Enforcement: Theoretical, Legal, and Practical Challenges
Peter Whelan
Content type:
Book content
Product:
Oxford Competition Law [OCL]
Series:
Oxford Studies in European Law
Published in print:
07 August 2014
ISBN:
9780199670062
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3.237.205.144