Monographs

The Criminalization of European Cartel Enforcement: Theoretical, Legal, and Practical Challenges

Professor Peter Whelan

Professor of Law

University of Leeds

 

Oxford University Press

  • The first monograph-length study of the challenges inherent in criminalizing cartel activity in the EU

  • Provides detailed analysis of the theoretical, legal, and practical difficulties facing European antitrust criminalization

  • Details the extent to which the problematic nature of antitrust criminalization can be overcome in practice

Cartel activity is prohibited under EU law by virtue of Article 101(1) of the Treaty on the Functioning of the European Union. Firms that violate this provision face severe punishment from those entities responsible for enforcing EU competition law: the European Commission, the national competition authorities, and the national courts. Stiff fines are regularly imposed on firms by these entities; such firm-focused punishment is an established feature of the antitrust enforcement landscape within the EU. In recent years, however, focus has also been placed on the individuals within the firms responsible for the cartel activity. It is increasingly recognized that punishment for cartel activity should be individual-focused as well as firm-focused. Accordingly, a growing tendency to criminalize cartel activity can be observed in the EU Member States.The existence of such criminal sanctions within the EU presents a number of crucial challenges that need to be met if the underlying enforcement objectives are to be achieved in practice without violating prevailing legal norms. For a start, given the severe consequences of a custodial sentence, the employment of criminal antitrust punishment must be justifiable in principle: one must have a robust normative framework rationalizing the existence of criminal cartel sanctions. Second, for it to be legitimate, antitrust criminalization should only occur in a manner that respects the mandatory legalities applicable to the European jurisdiction in question. These include the due process rights of the accused and the principle of legal certainty. Finally, the correct practical measures (such as a criminal leniency policy and a correctly defined criminal cartel offence) need to be in place in order to ensure that the employment of criminal antitrust punishment actually achieves its aims while maintaining its legitimacy.These three particular challenges can be conceptualized respectively as the theoretical, legal, and practical challenges of European antitrust criminalization. This book analyses these three crucial challenges so that the complexity of the process of European antitrust criminalization can be understood more accurately. In doing so, this book acknowledges that the three challenges should not be considered in isolation. In fact there is a dynamic relationship between the theoretical, legal, and practical challenges of European antitrust criminalization and an effective antitrust criminalization policy is one which recognizes and respects this complex interaction.

Reviews:

'Dr. Peter Whelan … has published a comprehensive road map for the successful introduction and enforcement of criminal cartel law for an EU member state.  He discusses in detail the many theoretical, legal, and practical challenges member states face in adding criminal enforcement to the administrative enforcement already existing at the EU and member state levels. … This is a deeply researched and carefully argued book that will teach US readers the complexities of the EU and member state competition systems as they inch toward a system of criminal cartel enforcement that the US largely takes for granted. For EU readers, this monograph highlights the many issues that remain to be resolved as the debate on criminal enforcement continues within member states and in other jurisdictions dealing with these issues for the first time.’

 

Professor Spencer Weber Waller

Loyola University Chicago

 

Containing 'valuable and original contributions', Dr Whelan’s book 'is meticulously researched and exceptionally well written. In addition to its main academic contribution, it acts as a very useful and comprehensive review of the existing literature on cartel criminalisation and is a treasure trove of useful references from start to finish'. 

 

Professor Andreas Stephan

Centre for Competition Policy

 

'The existing and potential sanctions within the EU designed to deter, or punish those who set up cartels form the basis of this rigorous and analytical study by Dr Peter Whelan published by the Oxford University Press. ... Whelan has therefore set himself the formidable task of addressing and examining what he refers to as the theoretical, legal and practical challenges of European antitrust criminalization, which he, stresses should be examined and analysed not separately, but as a dynamic whole. ... Whelan has certainly shed much light on a complex, often awkward and continually evolving subject, which is also fraught with implications for corporate responsibility in general. Lawyers as well as academics and policy makers will welcome the important contribution made by this book to the ongoing debate on cartels within the EU.'
 

Phillip Taylor MBE and Elizabeth Taylor

Richmond Green Chambers

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Presentations and Guest Lectures Related to this Monograph:

27 April 2018: University of Wurzburg, Germany (Conference Presentations)

23 April 2018: Tel Aviv University, Israel (Guest Lecture)

5 April 2018: The Peruvian Competition Authority (INDECOPI), Lima, Peru (Keynote Address)

3 April 2018: University of Chile, Santiago, Chile (Keynote Address)

2 April 2018: Competition Tribunal of Chile, Santiago, Chile (Guest Lecture)

2 April 2018: National Economic Prosecutor's Office of Chile, Santiago, Chile (Guest Lecture)

28 March 2018: Istanbul Bilgi University, Istanbul, Turkey (Guest Lecture)

23 March 2018: Latvian Law Institute, Riga, Latvia (Guest Lecture)

15 February 2018: Pázmány Péter Catholic University, Budapest, Hungary (Guest Lecture)

6 October 2017: International Competition Network, Ottawa, Canada (Conference Presentation)

29 September 2017: Kenyan Competition Authority, Nairobi, Kenya (Keynote Address)

21 September 2017: University of Hong Kong (Guest Lecture)

10 May 2017: International Competition Network, Porto, Portugal (Panel Discussant)

24 March 2017: University of Warsaw, Poland (Guest Lecture)

23 November 2016: Faculty of Law, University of Cambridge (Guest Lecture)

6 October 2016: V&A Waterfront, Cape Town, South Africa (Conference Presentation)

3 June 2016: Radboud University Nijmegen, the Netherlands (Keynote Address)

3 June 2015: Central European University, Budapest, Hungary (Conference Presentation)  

22 May 2015: Meiji University, Tokyo, Japan (Conference Presentation)

15 May 2015: University of Leeds (Conference Presentation)

6 March 2015: University of Oxford (Guest Lecture)

3 February 2015: University College London (Guest Lecture)

29 January 2015: National Law School, Bangalore, India (Guest Lecture)

28 January 2015: Christ University, Bangalore, India (Guest Lecture)

27 January 2015: NALSAR, Hyderabad, India (Guest Lecture)

3 December 2014: Queen's University Belfast (Guest Lecture)

27 November 2014: Spanish Competition Authority, Madrid (Conference Presentation)

24 October 2014: University of Bucharest, Romania (Conference Presentation)

15 October 2014: Strathclyde University, Glasgow (Guest Lecture)

27 May 2014: House of the Estates, Helsinki, Finland (Guest Lecture)

19 March 2014: Newcastle University, Newcastle (Guest Lecture)

30 October 2013: University of Bergen, Norway (Conference Presentation)

29 October 2013: BECCLE, Bergen, Norway (Guest Lecture)

22 June 2013: University of Oxford (Commentator at Conference)

10 May 2013: Centre for Competition Policy, University of East Anglia (CCP Seminar)

18 March 2013: Italian Competition Authority, Rome (Chair of Conference Panel)

29 November 2012: Commerce Committee, New Zealand Parliament (Provided Oral Evidence)

21 November 2012: Competition Law Forum, London (Guest Contributor)

13 August 2012: Hangzhou, China (Conference Presentation)

Edited Collections

The Consistent Application of EU Competition Law:

Substantive and Procedural Challenges

Editors:

Dr Adriana Almasan          Professor Peter Whelan

University of Bucharest           University of Leeds

Springer, 2017

  • Brings together papers by judges, academics, policy makers and practitioners in an interdisciplinary collection on the issue of national enforcement of EU competition law

  • Provides in-depth analysis of the most important limitations of, and the challenges facing, the applicability of Articles 101 and 102 TFEU at national level

  • Facilitates a more comprehensive understanding of the difficulties of the national application of EU competition law from both substantive and procedural perspectives

About this book:

In recent years, there has been a decentralisation of the enforcement of the EU competition law provisions, Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Consequently, the national application of these provisions has become increasingly more common across the European Union. This national application poses various challenges for those concerned about the consistent application of EU competition law.

 

This edited collection provides an in-depth analysis of the most important limitations of, and the challenges concerning, the applicability of Articles 101 and 102 TFEU at national level. Divided into five parts, the book starts out by examining how the consistent enforcement of Articles 101 and 102 TFEU operates as a general EU competition policy. It then discusses several recent landmark cases of the European Court of Justice on Articles 101 and 102 TFEU, before proceeding to analyse certain additional, unique jurisdictional challenges to the uniform application of the EU competition law provisions. Subsequently, it focuses on one of the most important instruments that can help to achieve the uniform application of EU competition law in cases handled by the national courts: preliminary rulings. Finally it provides selective

examples of how Articles 101 and 102 TFEU are effectively applied at national level, thereby providing additional input into how problematic the issue of consistent application of EU competition law is in practice.

 

 

Current Competition Law V

Editors:

Dr Philip Marsden

Michael Hutchings OBE

Peter Whelan

 

British Institute of International and Comparative Law, 2007

​This book is a collection of papers and speeches given at the following conferences of the British Institute's competition programme in 2005-2006: the annual Merger Control Conference (November 2005); a conference on the Reform of Article 82 (February 2006); the annual Competition Litigation Conference (February 2006); and the annual two-day Trans-Atlantic Antitrust Dialogue (July 2006). Research papers written by the British Institute's Competition Law Forum on private actions, reform of Article 82, and consumer detriment are also included. Areas covered include in-depth analyses of such topical areas as cartels, pricing practices and mergers. The book also provides comparative perspectives from European and American experts, as well as important statements of policy by competition officials.