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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 Challenge of Legal Certainty

European Antitrust Criminalization and the Challenge of Legal Certainty

(p.175) 7 European Antitrust Criminalization and the Challenge of Legal Certainty
The Criminalization of European Cartel Enforcement

Peter Whelan

Oxford University Press

This chapter analyses the challenge of legal certainty for European antitrust criminalization from three perspectives: the concept, substance, and existence of a criminal antitrust offence. The relationship with the concept is analysed first. The main argument examined is that, due to the inherently vague nature of the antitrust rules, it would be inappropriate to enforce such rules with criminal sanctions. In analysing how legal certainty can influence the substance of an offence, a case study of the (originally drafted) UK Cartel Offence is presented, explaining how mistakes in the drafting process can engender issues with legal certainty. Finally, in examining the impact of legal certainty upon the existence of an offence, this chapter analyses the issue of ‘sleeping giants’: i.e., the use of existing (relatively broad, non-antitrust-specific) criminal laws to impose sanctions upon cartel activity. The controversial UK case of Norris is particularly instructive and is therefore analysed in detail.

Keywords:   comprehensibility, dishonesty, legal certainty, norris case, UK Cartel Offence

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