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Is Criminalization of EU Competition Law the Answer? Concurrences Revue des droits de la concurrence Is criminalization of EU competition law the answer? Doctrines l Concurrences N° 1-2006 www.concurrences.com Wouter P. J. Wils [email protected] l Member of the Legal Service of the European Commission l Visiting Professor at King’s College London @ Doctrines Wouter P.J. Wils * [email protected] Is criminalization of EU Member of the Legal Service of the European Commission Visiting Professor competition law at King’s College London the answer? Abstract I. What do we mean by “criminalization”? This paper address the following five questions: First, what do we mean by “criminalization”, or “criminal” 1. No definition of “criminal” in EC or EU law enforcement (as opposed to public enforcement of a “civil” or “administrative” nature)? Second, is there a tendency in 1. Article 23(5) of Regulation No 1/2003,1 the main regulation governing the the EU Member States to criminalize antitrust enforcement enforcement of Articles 81 and 82 EC, provides that decisions by which the (in comparison with US antitrust enforcement and with antitrust enforcement at the level of the EU institutions)? European Commission imposes fines on undertakings for violations of Articles 81 Third, is criminal antitrust enforcement, more specifically and 82 EC, or for obstruction of investigations into possible violations, “shall not be imprisonment, desirable (in general, irrespective of whether of a criminal law nature”.2 The last sentence of recital 8 of the same Regulation says it takes places at the level of the Member States or of the EU institutions, or whether it is harmonized at EU level)? that “this Regulation does not apply to national laws which impose criminal sanctions Fourth, is it problematic that antitrust enforcement is on natural persons except to the extent that such sanctions are the means whereby criminalized at the level of individual EU Member States competition rules applicable to undertakings are enforced”.3 without parallel criminalization at the level of the EU institutions or without EU harmonization? Fifth, would it by copyright laws and internationalNon-authorised use of this document his document is protected copyright treaties. be legally possible to criminalize antitrust enforcement at the 2. The EU Treaty has a Title VI concerning “Provisions on police and judicial level of the EU institutions, or to have EU harmonization cooperation in criminal matters”. Article 30 (a) EU provides that common action of criminal antitrust enforcement in the Member States? in the field of police cooperation shall include operational cooperation in relation to the prevention, detection and investigation of “criminal offences”. Article 31 EU provides for common action on judicial cooperation “in criminal matters”. Dans cet article, l’auteur répond en cinq parties à la question : « La pénalisation du droit communautaire de la concurrence est-elle la 3. EC or EU law does not, however, contain any definition of what is criminal. solution ? ». Tout d’abord, qu’entend-on par «pénalisation», ou mise en œuvre pénale du droit de la concurrence (par opposition à la mise en œuvre publique de nature civile ou administrative) ? Deuxièmement, existe- 2. Distinguishing characteristics of criminal law t-il une tendance, dans les États membres, à pénaliser la politique de concurrence (par comparaison avec les politiques 4. Looking across legal systems (of the EU Member States, and of third countries, américaine et communautaire) ? Troisièmement, la répression in particular English-speaking third countries), criminal law, as opposed to public (Art. Intellectuelle). Personal use of this document is authorised within the limits Art.Intellectuelle and DRM protection. L. 335-2 Code de la Propriété L 122-5 pénale en droit de la concurrence, et plus particulièrement law enforcement of a civil or administrative nature, appears to have the following six les peines d’emprisonnement, sont-elles souhaitables (que 4 ce soit au niveau des États membres ou des institutions de distinguishing characteristics. l’UE, ou dans le cadre d’une harmonisation communautaire)? Quatrièmement, une mise en œuvre pénale du droit de la concurrence au niveau de chaque État membre est-elle problématique, sans pénalisation au niveau des institutions 2.1. Criminal penalties de l’UE, ni harmonisation européenne ? Cinquièmement, est-il juridiquement envisageable de procéder à une pénalisation 5. First, it appears that criminal law has a monopoly on the use of imprisonment. au niveau des institutions de l’UE ou au niveau des Etats Whereas fines can be either criminal or civil or administrative, imprisonment appears membres par la voie d’une harmonisation ? to be essentially a criminal sanction. The possibility of a prison sanction does not seem to be a necessary condition for a prohibited act or an enforcement procedure to be criminal, but it is certainly a sufficient condition. * Paper first presented at the Amsterdam Center for Law and Economics (ACLE) Conference Remedies and 6. Compared with civil or administrative enforcement, criminal enforcement tends to Sanctions in Competition Policy (Amsterdam, 17-18 February 2005) forthcoming in K.J. Cseres, M.P. Schinkel make relatively more use of penalties imposed on individuals (natural persons), and and F.O.W. Vogelaar (eds), Remedies and Sanctions in relatively less of penalties imposed on corporate entities or legal persons. Individual Competition Policy: Economic and Legal Implications of penalties are however neither a necessary nor a sufficient condition for enforcement the Tendency to Criminalize Antitrust Enforcement in the EU Member States (Edward Elgar, 2005) also published to be criminal. In Denmark, for instance, violations of Articles 81 and 82 EC and in World Competition, Volume 28, No. 2, June 2005, pp. of the parallel prohibitions under national competition law are punished with fines, 117-159, French translation forthcoming in Revue Lamy de la Concurrence, September 2005; republished online in Concurrences with the authorisation of the author. 1 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules of competition laid down in The author gratefully acknowledges comments and Articles 81 and 82 of the Treaty [2003] OJ L1/1. This regulation has replaced, as of 1 May 2004, Council Regulation No 17 [1962] OJ 13/204 (Special English Edition 1959-62, p 87). contributions received from Margaret Bloom, Leo Flynn, Céline Gauer, Nicholas Khan, Clemens Ladenburger, 2 On the interpretation of this provision, see paragraphs 37 and 38 below, and further W.P.J. Wils, Principles of European Kirti Mehta, Walter Mölls, Andreas Reindl and Geert Wils. Antitrust Enforcement (Hart Publishing 2005), section 1.1.4.3.3 (footnote 88). All views expressed in this paper are strictly personal to 3 On the meaning of this sentence, see paragraph 62 below; see also paragraph 149 below as to the use of the word “criminal” in the author, and should not be construed as reflecting the the text of the EC Treaty. opinion of the European Commission, its Legal Service or any of the above mentioned persons. 4 See W.P.J. Wils, The Optimal Enforcement of EC Antitrust Law (Kluwer Law International 2002), section 8.7.2.1. délit pénalement sanctionné jusqu'à 3 ans d'emprisonnement et 300 000 € d'amende utilisation non autorisée constitue une contrefaçon, d'auteur par les conventions internationalesintellectuelle du 1er juillet 1992. Toute du droit en vigueur et le Code de la propriété au titre Ce document est protégé pouvant accompagner ce document. T personnelle est strictement autorisée dans les limites de l’articletechniques protection L. 122 5 CPI et des mesures CPI). L’utilisation (art. L. 335-2 constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment € 300 000 fine Concurrences N° 1-2006 I Doctrines I W. P. J. Wils, Is criminalization of EU competition law the answer? 1 which are of a criminal law nature, but which are in practice 2.6. Criminal rights of defence only imposed on undertakings, not on natural persons. In Germany, on the other hand, leaving aside the specific 11. Finally, criminal procedures tend to have stronger criminal law provisions on bid-rigging, violations of Articles procedural protections, designed to avoid false convictions. In 81 and 82 EC and of the parallel national prohibitions particular, in criminal enforcement systems the adjudicative are punished through fines, which are imposed on natural or decision-making function is always separated from the 9 persons, and only derivatively also on undertakings, but investigative and prosecutorial function or functions. 5 which are of an administrative law nature. Whereas it appears to be a necessary condition of criminal enforcement that the body which imposes the criminal penalties is separate and independent from the investigator 2.2. Criminal intent and prosecutor, it is however not a sufficient condition. In 7. Second, the commission of a criminal offence usually Finland, for instance, violations of Articles 81 and 82 EC and requires that the prohibited act be committed with a guilty of the parallel national prohibitions are punished with fines state of mind (criminal intent), not by mere negligence. on undertakings, which are of an administrative law nature, but which are imposed by the Market Court, a specialised court which is entirely separate and independent from the 2.3. Moral condemnation Competition Authority, which acts as investigator and prosecutor. In criminal enforcement systems, the standard 8. Third, the imposition of criminal sanctions carries, and is of proof for establishing violations also tends to be higher. designed to carry, a stigma effect. Criminal enforcement has In the English-speaking countries, criminal convictions a stronger message-sending role or expressive function than normally require proof “beyond reasonable doubt”, whereas 6 civil or administrative enforcement. civil or administrative findings can normally be made by“ a preponderance of the evidence” or a “balance of probabilities”.
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