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The Criminalization of European Cartel EnforcementTheoretical, Legal, and Practical Challenges$
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Peter Whelan

Print publication date: 2014

Print ISBN-13: 9780199670062

Published to Oxford Scholarship Online: November 2014

DOI: 10.1093/acprof:oso/9780199670062.001.0001

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Potential Theoretical Justifications for European Antitrust Criminalization

Potential Theoretical Justifications for European Antitrust Criminalization

(p.25) 2 Potential Theoretical Justifications for European Antitrust Criminalization
The Criminalization of European Cartel Enforcement

Peter Whelan

Oxford University Press

This chapter identifies and clarifies the potential theoretical justifications for European antitrust criminalization. It focuses on two distinct justificatory theories which are relevant for antitrust criminalization: deterrence and retribution. After explaining why deterrence and retribution are potentially relevant for antitrust criminalization and why other theories of criminalization are of limited use in the European antitrust criminalization debate, the chapter provides a concise overview of the essentials of both of the relevant justificatory theories. The (general) limitations of these theories are also detailed to provide a fuller understanding of the challenge one faces when applying either of the theories to the specific case of antitrust enforcement. An insight into the extent to which deterrence and retribution are already pursued by current European antitrust enforcement policy is also provided.

Keywords:   deterrence, EU competition enforcement, EU Fining Guidelines, justifications for punishment, Regulation 1/2003, retribution

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