Morality and Its Restraining Influence on European Antitrust Criminalisation
| Author | Peter Whelan |
| Position | Research Fellow in Competition Law, British Institute of International and Comparative Law, and PhD Candidate, St John's College, Cambridge |
| Pages | 40-62 |
MORALITY
AND
ITS
RESTRAINING
INFLUENCE
ON
EUROPEAN ANTITRUST
CRIMINALISATION
PETER
WHELAN*
I.
Introduction
Background
Serious academic
debate has
been ongoing
in
Europe
for
a
number
of
years
concerning
the
optimal enforcement
of
EC
competition
law.' One
of
the
(controversial)
issues
raised
in
this
debate
concerns the employment
of
personal
criminal
punishment,
including imprisonment, for
serious
antitrust
offences,
such
as
the
formation
of
hard-core
cartels
involving
price-fixing,
market allocation, output
restriction
or
bid-rigging.
While
an
express
authorisation
for
national criminal sanctions
for
antitrust
offences
has
been
provided
by
the
Council
of
Ministers,2
they
have only
been
introduced
by
a
small
minority
of
EC
Member
States.
Nonetheless,
a
number
of
scholars
have
argued in
favour
of
European
criminal antitrust
sanctions,'
and
some
European countries
have seriously
considered
introducing
them.
4
Those who advocate
the
criminalisation
of
anticompetitive
conduct
invariably
concentrate
on
the
deterrent value
of
criminal punishment
and
its
appropriateness
in a
setting
where
activity
is
planned
and
conducted
in
a
calculated,
deliberate
manner
in
order
to
maximise
profits.'
Issues
of
' Research
Fellow
in
Competition
Law,
British
Institute
of
International and
Comparative
Law,
and
PhD
Candidate,
St
John's
College, Cambridge.
1
See
eg
Lianos &
Kokkoris
eds.,
The
Reform
of
EC
Competition
Law: Towards
an
Optimal
Enforcement
System
(Kluwer
International, forthcoming).
2
Council Regulation
on
the
Implementation
of
the
Rules on
Competition
Laid
Down
in
Articles
81
and
82
of
the
Treaty,
OJ
L1/l,
art
5.
3
See
eg
Wils,
"Is
Criminalization
of
EU
Competition
Law
the
Answer?"
(2005)
28(2)
World
Competition
117;
and Zuleeg, "Criminal
Sanctions
To
Be
Imposed
on
Individuals
as
Enforcement Instruments
in
European Competition
Law"
in
Ehlermann
&
Atanasiu
eds.,
European
Competition
Law
Annual
2001:
Effective
Private
Enforcement
of
EC
Antitrust
Law
(Hart
Publishing,
2002).
4
One
example
is
Sweden;
see
Swedish
Competition
Authority,
Criminal
Enforcement
of
Antitrust
Laws
(Fordham Law Seminar,
New
York,
14
September
2006).
5
See
eg
Calvani,
Competition
Penalties
and
Damages
in
a
Cartel
Context:
Criminalisation
and
the
Case
for
Custodial
Sentences
(Irish Centre
for
European
Law,
13
December
2004).
©
2009
Peter Whelan
and
Dublin University
Law
Society
Morality
and
European
Antitrust
Law
morality
are
rarely
considered
in
this
context.6
Some
have
argued
that by
enacting
criminal
laws
for
economic
regulatory
offences (including
antitrust
violations)
one
"overcriminalises"
the
law and
thereby
reduces
significantly
the
moral
stigma
of
traditional criminal
law
offences.7
Criminal
sanctions,
they
argue,
should
not
be
imposed
in
the
absence
of
criminal
harm that deserves
moral condemnation It
is
submitted that
advocates
of
antitrust
criminalisation should
respond
to
this
argument
in
a
theoretically
consistent
manner,
as
in
the absence
of
such
a
response
the
case
for
antitrust
criminalisation may
be
weakened somewhat
and
therefore
be
less
politically acceptable.
Aim
and
Layout
The
immediate
aim
of
this
article
is
to
respond
to
the
"overcriminalisation"
argument
as
regards
European
antitrust
law
and
to
argue
that
morality,
while
important,
is
not
an
insurmountable obstacle
in
the
way
of
antitrust
criminalisation.
In doing
so,
it
(i)
details
the
restraining
influence
of
morality in
the
context
of
antitrust
criminalisation;
and
(ii)
highlights
how
a
hybrid
model
of
antitrust
criminalisation,
while
subject
to
this
restraining
influence
of
morality, can
nonetheless
be
of
direct
practical
value
when
contemplating the
introduction
and
maintenance
of
European
criminal
antitrust
sanctions.
This
article
is
divided into
three
substantive parts.
Part
II
sets
out a
hybrid
model
of
antitrust criminalisation
that should
be
employed
when
considering
the
criminalisation
of
cartel
activity. This
model
is
constructed
using
both
deterrence
theory and
retribution
theory,
and
allows
for
principles
other
than
effectiveness
or
efficiency to
be
taken
into
account,
such
as
autonomy
and
respect for
the
law.
Part
III
considers the
argument
that
morality
should
restrict
criminalisation
plans
due to
the
claim
that
crimes
should
not
be
"morally neutral".
In
particular,
it
(i)
specifies the
elements
that
determine
the
moral
content
of
a
given
law;
and
(ii)
details
the
potential
(negative)
consequences
of
a
morally-neutral
criminal
law.
In
doing so,
it
establishes
the
restraining
influence
of
morality.
Part
IV
analyses
whether
the
model
of
antitrust
criminalisation
developed
in
Part
II
takes
sufficient
notice
of
the
restraining
influence
of
morality
identified
in
Part
III.
It
argues
that,
while capable
of
influencing
efforts
to
criminalise
cartel
activity,
the
concept
of
morality
does
not invalidate
the
(principled)
6
A
notable
exception
is
Stucke,
"Morality and
Antitrust"
[2006]
3
Columbia Business
Law
Review
443.
7
Robinson,
"Moral
Credibility
and
Crime" (March
1995)
Atlantic
Monthly
72,
at
77.
8
Ibid.
See
also
Robinson
&
Darley,
Justice,
Liability
and
Blame:
Community
Views
and
The
Criminal Law
(Westview Press,
1996),
at
201-202.
2009]
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