The “Public” Wrong of Cartels and the Article 101 TFEU “Object Box”

The criminalization of cartel behavior in the UK turned attention to the criminal wrong at the heart of cartels. An understanding of the true nature of the cartel problem can also be used to develop a better understanding of Art 101 TFEU. This article uses the literature on the wrongfulness of cartels to examine how cartel behavior has the “object” of restricting competition within the terms of Art 101 TFEU. It pays particular attention to cases at the periphery of cartel behavior. The literature focuses on the importance of free markets as public institutions. Cartels are perceived as being a species of “cheating” which deserves opprobrium as it goes against the legitimate expectations of market participants. A reexamination of the cartel periphery cases involving information exchange and cartel facilitation using this lens shows a novel understanding of how these cases fit within the Art 101 TFEU “object box.”

The Principles of Constitutional Reform

In legal orders around the world, commitments to democracy, liberalism and constitutionalism are increasingly eroding. Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this article are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance and refinement of liberal democratic constitutional orders. As a constructive matter, I will draw on Immanuel Kant’s constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong.

Law and Political Philosophy

Modern states pursue most of their (domestic) ends by creating law and acting in accordance with the law they create. Moreover, many believe states ought to pursue most of their ends this way. If a state ought to do something, then chances are it ought to do it by creating, abolishing, changing, upholding, or enforcing some law. Therefore, almost any kind of political philosophy with bearing on what states should do has bearing on what law should be like. Justifying the legal proscription of some conduct involves more than just showing that citizens ought to refrain from that conduct. Legally restricting conduct is an exercise of coercion and must be justified as such. Criminal prohibitions in particular require special justification, as they are not only coercive but also commit the state to deliberately inflict the harm and stigma of punishment on some of its own citizens. Nevertheless, if the state must coerce its citizens, it ought generally to do so through a law that conforms to the rule of law. Law conforms to the rule of law if it is capable of guiding the citizens as they act and plan for the future. This the law can do only if it is open, clear, prospective, and stable, such that citizens can know what it demands now and predict with reasonable certainty what it will demand in the future. Conformity to the rule of law promotes freedom and is required to respect human dignity. Much of the debate about the justification and scope of legal coercion revolves around several principles that advance claims about what considerations are relevant to the justifiability of law. These principles all have the following structure: The fact that a legal restriction of a certain kind is related in a certain way to a certain type of conduct has a certain impact on whether that restriction is justifiable. Common principles include (a) legal moralism, according to which it is always a good reason to criminalize conduct that the conduct is wrongful; (b) the wrongness constraint, according to which criminalizing morally permissible conduct is never justified; (c) liberalism, according to which it is always a good reason to criminalize conduct that the conduct is either harmful or seriously offensive to others, and criminalizing conduct that is neither harmful nor offensive is never justified; (d) the public wrong principle, according to which it is always a good reason to criminalize conduct that the conduct is a public wrong, and criminalizing conduct is never justified unless the conduct is a public wrong; (e) the sovereignty principle, according to which the only legitimate restrictions on conduct are those that secure independence. Which, if any, of these principles one should accept is the subject of an extensive and sophisticated academic debate.

Legal Moralism and Public Wrongs

This chapter provides a preliminary discussion of ‘legal moralism’. It distinguishes ‘negative’ from ‘positive’ legal moralism; it defends negative legal moralism (we may not criminalize conduct that is not wrongful prior to its criminalization), and shows why positive legal moralism (the wrongfulness of a type of conduct gives us reason to criminalize it) is attractive. It criticizes the most familiar form of positive legal moralism, according to which we have good reason to criminalize all morally wrongful conduct, as being implausibly over-expansive, and argues for a modest legal moralism according to which criminal law is concerned only with public wrongs. The idea of a public wrong is explained through a discussion of professional ethics, and an analogy between codes of professional ethics, dealing with wrongdoing that falls within a particular practice, and criminal law, as concerned with wrongdoing that falls within the distinctive practice of civic life—of a polity.

Civil Order and the Public Realm

This chapter offers an account of the practice of civic life: of the ‘public realm’, within which criminal law operates as public law. ‘Civil order’, the normative ordering of the polity’s life, is central to this public realm: it is structured by the values through which a polity constitutes itself; it can be partly defined by a written constitution, but is also implicit in the polity’s institutions and practices. A conception of civil order depends on a normative distinction between the ‘public’ and the ‘private’: we must attend to different public–private distinctions. We must also attend to the preconditions of civil order: what kinds of shared understanding are necessary; what can be said to dissenters? Given a conception of a polity’s civil order, and its public realm, we can understand a ‘public wrong’ as a wrong that falls within that public realm, and violates that civil order.

Master Principles of Criminalization?

This chapter turns to criminalization, and the question whether we should seek a ‘master principle’ by which to guide criminalization deliberations. Different kinds of master principle are distinguished (positive/negative, responsive/preventive, pro tanto/categorical, thick/thin); familiar principles (notably harm principles) are criticized. A plausible master principle should be positive, pro tanto, at least partly preventive, and thin: it will leave most of the substantive normative work in deciding what to criminalize still to be done. A thin master principle emerges from the preceding chapters: we have good reason to criminalize a type of conduct if and only if it constitutes a public wrong; it constitutes a public wrong if and only if it violates the polity’s civil order. This leaves the questions of how the polity’s civil order is constituted, and what kinds of conduct violate it, to be decided; but it shows what kinds of argument are relevant to criminalization decisions.

Criminalization and Civil Order

This chapter explains the ‘public wrongs’ criminalization principle. However, criminalization is one among various possible responses to public wrongs: so we must ask whether we have good reason to criminalize a public wrong rather than responding in another way. To illustrate the working of a ‘public wrongs’ principle, examples of three kinds of offence are discussed. First, ‘mala in se’, consisting in conduct supposedly wrongful prior to its legal regulation: the criminalization process here involves constructing a civic conception of the wrong. Second, different types of ‘malum prohibitum’ (consisting in conduct that might be wrongful only because legally prohibited) are discussed, to show how violations of pre-criminal regulations can constitute criminalizable wrongs. Third, ‘pre-emptive’ offences are discussed: they criminalize conduct only remotely connected to the mischief at which the law is aimed; it is important to see how far such offences can be justified—and subjected to principled constraint.

Public Wrongs and Private Wrongs

There are a set of wrongs that are normatively distinct as ‘criminal wrongs’, and yet, there is disagreement as to ‘the basic features of criminal liability’ that explain this normative distinctiveness. The only consensus has been that criminal wrongs are ‘public wrongs’. For some, they are public wrongs in the sense that they infringe the values and interests for which the community has a shared and mutual concern. For others, they are public wrongs in the sense that they are the wrongs that public officials are responsible for punishing. A third view is that they are public wrongs in the sense that there are procedural advantages of having public officials empowered to address the wrongdoing. I argue here that the first two views are analytically inseparable: the considerations that explain the wrongs that merit social prohibition are the same considerations that explain the censuring and punitive response of the criminal law. I also argue here that, contrary to the third view, the powers of public officials in criminal law procedures follow from, rather than explain, the concept of a crime being a public wrong. Procedural advantages can explain how criminal wrongs are public wrongs, but they cannot explain why criminal wrongs are public wrongs.