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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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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 05 December 2021

European Antitrust Criminalization and the First Challenge of Due Process

European Antitrust Criminalization and the First Challenge of Due Process

A ‘Strengthening of Rights’ in Favour of the Accused?

(p.117) 5 European Antitrust Criminalization and the First Challenge of Due Process
The Criminalization of European Cartel Enforcement

Peter Whelan

Oxford University Press

This chapter 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. It articulates the legal framework informing the challenges of due process which are analysed; specifically, it highlights how the introduction of criminal cartel sanctions ensures the applicability of Article 6 ECHR to antitrust proceedings. It then examines whether, in applying Article 6 ECHR, one must in fact strengthen certain procedural rights: it examines the validity of the ‘strengthening of rights’ contention. Once the extent of such validity is established, the chapter examines the actual impact of the ‘strengthening of rights’ contention. Two inquiries are made in this context, namely, whether: (i) any ‘strengthening of rights’ required has a potential negative impact upon European antitrust enforcement; and (ii) the European antitrust authorities can compensate for any potential negative impact identified.

Keywords:   bounties, criminal enforcement powers, division of functions, due process, leniency, standard of proof, right to silence, strengthening of rights

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