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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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European Antitrust Criminalization and the Second Challenge of Due Process

European Antitrust Criminalization and the Second Challenge of Due Process

Imposing Criminal Sanctions alongside Civil Sanctions

(p.142) 6 European Antitrust Criminalization and the Second Challenge of Due Process
The Criminalization of European Cartel Enforcement

Peter Whelan

Oxford University Press

This chapter analyses the ‘additional dynamic’ contention of European antitrust criminalization, and whether (and, if so, how) it is possible to respect the accused's human rights when civil/administrative sanctions are imposed alongside criminal sanctions for a given cartel. It first determines the validity of the contention by considering the likelihood and legality of four particular, associated manifestations which reflect the various sanctioning scenarios that can be created when both criminal and administrative antitrust sanctions are employed across the EU. It then examines the impact of the contention, examining the specifics of the due process-related challenge presented when personal criminal antitrust sanctions are indeed employed alongside civil/administrative sanctions against undertakings. Three important issues are considered: information exchange; double jeopardy; and concurrent proceedings. When necessary, this chapter attempts to identify techniques that help antitrust enforcers to respect the accused's due process rights in this context.

Keywords:   concurrent proceedings, double jeopardy, EU Competence, information exchange, pre-trial publicity, Regulation 1/2003

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