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

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.

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

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.

Conclusion, 11 Concluding Remarks on the Theoretical, Legal, and Practical Challenges of European Antitrust Criminalization

This concluding chapter provides final remarks on the theoretical, legal, and practical challenges of European antitrust criminalization. It also determines five different research questions that should be addressed by future researchers. First, more detailed, reliable empirical evidence on the motivations of cartelists and whether or not they act in accordance with the rationality assumption of deterrence theory is required. Second, detailed qualitative and quantitative research concerning the usefulness of information exchange within the European Competition Network (ECN) would also be useful. Third, empirical evidence should be generated concerning whether consumers actually assume that their suppliers are not engaged in cartel activity with their competitors. Fourth, empirical studies on the extent to which risk aversion is a characteristic of corporate entities need to be pursued. Finally, empirical evidence on the cultural sensitivity of perceptions of cartel activity among the citizens of the different EU Member States would be welcome.

Part III Practical Challenges, 9 European Antitrust Criminalization and the Second Challenge of Design: Understanding the Complexities of Leniency/Immunity

This chapter focuses on the second challenge of design for European antitrust criminalization: articulating and overcoming the unique challenges of criminal immunity for cartelists and responding to the challenge of ensuring peaceful co-existence of both administrative leniency/immunity and criminal cartel sanctions. It identifies three mechanisms that can be useful in resolving any conflict between administrative leniency programmes and criminal sanctions. The first mechanism identified was the creation of a criminal immunity programme for cartel activity. The second mechanism which is designed to resolve any conflict between administrative leniency programmes and criminal sanctions is the linking of the criminal immunity policy with the administrative leniency policy. The third mechanism identified involves dealing with the issue of criminal disclosure.

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

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.

Part II Legal Challenges, 5 European Antitrust Criminalization and the First Challenge of Due Process: A ‘Strengthening of Rights’ in Favour of the Accused?

This chapter assesses the contention that the introduction of criminal antitrust sanctions, including imprisonment, results in a ‘strengthening of rights’ in favour of the accused. The reasoning behind such contention is likely to be the following: when the imprisonment of an individual is a possible outcome of an antitrust investigation, the human rights protections concerning that individual should be at their most robust; protections which would be merely sufficient in relation to the imposition of administrative antitrust sanctions may no longer be adequate when criminal antitrust sanctions are imposed. The chapter then determines whether in practice the concept of due process obstructs a project of antitrust criminalization which respects the procedural requirements of European human rights law.