INTERNATIONAL: EUROPEAN UNION - COMPETITION ENFORCEMENT - CRIMINALISATION - SANCTIONS - EFFICIENCY

EU: The criminalisation of competition law breaches - Another attempt to square the circle?

This article explores the mechanisms that some Member States of the European Union have put in place to criminalise the enforcement of competition law. It highlights the rationale behind the criminalisation of competition law breaches in those few European countries that have chosen to implement it. It accounts for the limitations that this policy faces and the impact it has on the efficient sanction of market conducts that are inconsistent with the requirements of free and fair competition within the single market. A particular emphasis is placed on the approaches adopted by the British and Irish national competition authorities which provide two archetypical, yet competing approaches to the criminalisation of competition law enforcement in the European Union.

I. Introduction 1. The criminalisation of competition law breaches denotes the criminal proceedings that national competition authorities may launch against individuals who have agreed on market divisions or quantity restrictions which have had for their effect the prevention, restriction or distortion of competition within a market (i.e., hardcore cartels). Currently, few EU Member States criminalise competition law breaches. While the objectives of retribution, deterrence, incapacitation, rehabilitation, and restoration that criminal law embodies deserve praise in that they afford (i) the sanction of advantages improperly taken or unfair detriment inflicted upon other undertakings, and (ii) reparation, through state authority, of competition harms caused to others operating within

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Kane Abry-Diaw de Baye, EU: The criminalisation of competition law breaches - Another attempt to square the circle?, February 2020, Concurrences N° 1-2020, Art. N° 92669, www.concurrences.com

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