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 de l’UE, niharmonisation européenne?Cinquièmement, est-il américaine etcommunautaire)?Troisièmement, larépression américaine @ Doctrines l’UE, ou danslecadred’uneharmonisationcommunautaire)? Kirti Mehta, be legally antitrustenforcement possibletocriminalize atthe politique deconcurrence (par comparaison aveclespolitiques the Tendency toCriminalize AntitrustEnforcement inthe imprisonment, desirable(ingeneral,irrespective ofwhether imprisonment, opinion oftheEuropean Commission,itsLegal Serviceor the EU Member States to criminalize antitrust enforcementthe EUMemberStatestocriminalize problématique, sans pénalisationauniveau des institutions the author, andshouldnotbe construedasr February 2005)forthcoming inK.J. Cseres, M.P. Schinkel or “administrative”nature)?Second,isthereatendencyin concurrence (paropposition à lamiseenœuvre publique de contributions received from Margaret Bloom, LeoFlynn, All views expressed inthispaper are strictly personal to 117-159, French translation forthcoming inRevueLamy in World Competition, Volume 28,No. 2,June 2005,pp. Competition Policy: EconomicandLegal Implicationsof institutions orwithoutEUharmonization?Fifth,wouldit enforcement (asopposedtopublicenforcement ofa“civil” EU institutions, orwhetheritisharmonizedatEUlevel)? juridiquement envisageabledeprocéderàunepénalisation juridiquement Third, is criminal antitrustenf Third, iscriminal ce soitau niveau desÉtatsmembres ou des institutions de de laConcurrence, September2005;republished online Member oftheLegalServiceEuropean pénale endroitdelaconcurrence,etplus particulièrement criminalized atthelevelofindividualEUMemberStates criminalized antitrust enforcement atthelevelofEUinstitutions)? level oftheEUinstitutions, ortohaveEUharmonization EU MemberStates(Edward Elgar, 2005)alsopublished au niveau des institutionsdel’UEouniveaudesEtats les peinesd’emprisonnement,sont-ellessouhaitables (que nature civileouadministrative)?Deuxièmement, existe- it takesplacesatthelevelofMemberStatesor of cr t-il unetendance, dans lesÉtats membres,àpénaliserla Quatrièmement, une miseenœuvrepénaledudroitdela in Concurrences withtheauthorisationof author. Law andEconomics(ACLE) Conference Remedies and (in comparison withUSantitrustenforcement(in comparison andwith and F.O.W T «pénalisation», ou miseenœuvrepénaledudroitdela what do we mean by “criminalization”, or “criminal” or “criminal” what dowemeanby“criminalization”, Céline Gauer, NicholasKhan,Clemens Ladenburger, without parallel criminalization atthelevelofEU without parallelcriminalization Fourth, is itproblematicthatantitrustenf concurrence auniveau dechaque État membreest-elle Sanctions inCompetitionPolicy (Amsterdam, 17-18 The authorgratefully acknowledges comments and * Pa his paperaddressthef iminal antitrustenforcement intheMemberStates? per fir parties àlaquestion :« Lapénalisationdu droit Walter Mölls, Andreas ReindlandGeert Wils. . V solution ? ». Tout d’abord, qu’entend-on par communautaire delaconcurrenceest-elle membres parlavoied’uneharmonisation? st presented attheAmsterdam Centerfor ogelaar (eds),Remedies andSanctionsin D Commission VisitingProfessor ans cetarticle, l’auteurrépondencinq any oftheabove mentioned persons. Wouter P.J. Concurrences N°1-2006 at King’s CollegeLondon ollowing fivequestions:First, [email protected] orcement, morespecificall Abstract efl W orcement is ecting the ils Doctrines Doctrines I * y 3 2 4 the answer? competition law Is criminalizationofEU 1 prohibitionsparallelnationallaw the under competition fines, with arepunished of and EC 82 and 81 Articles of violationsinstance, for Denmark, In criminal. be to arehoweversufficientpenalties a condition nor necessary enforcementa for neither relatively penalties imposed on corporate entities or legal persons. less of Individual make relatively penalties imposed on individuals (natural persons), and more use of 6. to becriminal,but itiscertainly asufficient condition. enforcementprocedurean or act prohibited a for condition necessary a be to seem not does sanction prison a of possibility The sanction. criminal a essentially be to Whereas fines can be either criminal or civil or administrative, imprisonment appears 5. 2.1. Criminalpenalties distinguishing characteristics. law enforcementa civil or of administrative nature, appears to have the followingpublic six to opposed law,as criminal countries), third English-speaking particular in 4. criminallaw 2. Distinguishingcharacteristics of 3. ECorEUlaw doesnot,however, what iscriminal. containany definitionof provides for commonactiononjudicialcooperation “incriminalmatters”. EU 31 offencesArticle “criminal ”. investigationand prevention,detection the of to relation in cooperation operational include shall cooperation police of field the in action common thatprovides EU (a) Article 30 matters”. criminal in cooperation 2. 1. “criminal”inECorEUlaw 1. Nodefinitionof I. Whatdowe meanby“criminalization”? of a criminal law nature”. of the which by decisions and 82 EC, or investigationsfor that obstruction of into possible violations, “shall not be provides EC, 81 Articles of violations 82 for undertakings on fines imposes Commission and European 81 Articles of enforcement n aua pros xet o h etn ta sc sntos r te en whereby means the are competition rulesapplicable toundertakings sanctions are enforced”. such that extent the to except persons natural on sanctions whichcriminal laws impose national applyto not does Regulationthat “this W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? Compared with civil or administrative enforcement, criminal enforcement tends to Looking across legal systems (of the EU Member States, and of third countries,third States,of Member and EU the (of systems legal across Looking First, it appears that criminal law has a monopoly on the use of imprisonment. of use the on monopoly a has law criminal that appears it First, h E Tet hs Tte I ocrig Poiin o plc ad judicial and police on “Provisions concerning VI Title a has Treaty EU The ril 2() f euain o 1/2003, No Regulation of 23(5) Article On EnforcementAntitrust (HartPublishing 2005),section1.1.4.3.3(footnote 88). On [1962] OJ13/204(SpecialEnglishEdition1959-62, p87). See the textof Council Articles the W.P.J. the meaning interpretation 81 Regulation h pia nocmn fEC Law (KluwerAntitrust Law Wils, The OptimalEnforcement of theEC and 82 of Treaty.

of this (EC)

the of sentence,

No Treaty this 1/2003 provision, [2003] see 2 The last sentence of recital 8 of the same Regulation recital 8 of says The last sentence of paragraph of OJ

4 16

see L1/1. December paragraphs 62 This below; regulation 2002 see 37 on also and the 1 paragraph has h mi rglto gvrig the governing regulation main the 38 implementation belo replaced, w, International2002),section 8.7.2.1.

and 149 as below further of 3 of

May the as W.P.J. to rules 2004, the Wils, use of Council

competition of Principles of European of Principles

the w Regulation ord

“criminal” laid down No 17

in in 1

P. ora f Legal Studies Journal of Criminal EC competition J. an Coffee, an R. Newman Adenaes, overview Meaning, 66 144 eti bhvor b mkn te co bear actor the making (by behaviour certain price ue a Journal law Duke Antitrust overview Cooter, “An (eds), 23, Journal of Criminal Law & Criminology & Law Criminal Journalof “Paradigms University of Pennsylvania Review Law Universityof 567, Law D.M. Economic Dif (ed.), “The The Modernisation of EU Competition Law Enforcement Law Competition EU of Modernisation The of 17, authorities “Prices (Cambridge Concurrences N°1-2006 of ficulty” 7 and and in Enforcement:

the Kahan,

and The New Palgrave Dictionary of Economics and the Law the and Economics of Palgrave Dictionary New The (1992)101The Yale LawJournal 1875. Policing antitrust Moral chapter Deterrence” law lost: “General Analysis and (1997) 1, and “Social 609, or from the C.R. UP Corporate 5 sanctions” enforcement economics Educa of and blurring 95 A antitrust of 2004), prevention

Meaning Principles of European Enforcement , Antitrust of Principles Sunstein, (1997) Review Law Michigan

K.G Legal the tive

. Influence Criminal Misconduct” and of of (1984) Dau-Schmidt, offenders, 83 and in

and the the “On revisited: M. the Review Law Virginia Doctrines Doctrines I 8 collection criminal the

Economic

Holmes 6 84 the 338, 25

2021, Law of Economic

see Review Law Columbia Member Expressive (1997) Criminal research at “Preference as and W.P.J. and D.M. 341-343, of 2385, a 5 Analysis”

Preference-Shaping intelligence civil L. 60 Analysis W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? Kahan, States, Wils, International2004). and Law” Da G.E. Law and Contemporary Contemporary and Law Function law vey as shaping policy “Self-incrimination

349,

models (1971) well 26 (2003)

see “Social Influence Lynch, of (eds), and

Crime” D. – FIDE 2004 FIDE – N.K. as implications” of prohibit by (Macmillan evidence A Practical A – 27 Cahill K.G. “The 1523

the and the Katyal, Journal

Policy” as (1998) World law”, Dau- Law” w R note and and hat ole by ,

0 10 preponderance “ a the of evidence” or a “by made be normally can administrativefindings or civil convictions criminal whereas doubt”, reasonable“beyond proof countries,require normally English-speaking the In higher. be to tends also violationsestablishing for proof of and standard investigator the systems, enforcement as criminal In prosecutor. acts which Authority, Competition the from independent and separate entirely is which court specialised a Court, Market the by imposed are which but administrativelawnature,an of are undertakings,which on fines with punished areprohibitions national parallel the of Finland, for instance, violations Articles of In 81 and 82 condition. EC sufficient and a not however is prosecutor,it and criminal the investigator the imposes from independent and separate which is penalties body the that enforcement criminal of condition necessary a be to appears it Whereas behaviour unconditionally rather thanmerely topriceit. criminal the deter to desire the reflecting harm, actual and punishment between relationship strict a of absence the as this (as shows the mind need for wrong valuationsof to statebe repudiated) guilty enforcementas well a criminal of requirement the explains of role message-sending the hand, so as to avoid enforcement becoming ineffective. On the protections other procedural create in their turn the need for stronger investigative stronger powers These convictions. false avoidto protections procedural for need stronger the create effect stigma the and imprisonment of use The interrelated. 12. 2.7. Linksbetween thesixcharacteristics netgtv ad rsctra fnto o functions. or function prosecutorial and investigative the from separated always is function decision-making or adjudicative the systems enforcement criminal particular,in procedural protections, designed to avoid false convictions. In 11. defence 2.6. Criminalrightsof 9 Human Rights. on Convention as European the “criminal” of 6 of Article under conceived notion wider the from should distinguished paper this be of most throughout used as and above 13. European Convention on Human Rights “criminal”inthe 3. Thewidernotionof See Enforcement, asnote2above. (2004) Adjudica EC Law W.P.J. See 2004), 537-573, Policyand Law International Antitrust – Institute Law Corporate section sections 1.1.4.3.3(footnote 88)and6.1.4.1. h nto o “rmnl efreet s described as enforcement “criminal” of notion The ial, rmnl rcdrs ed o ae stronger have to tend procedures criminal Finally, hs sx hrceitc lse aoe r clearly are above listed characteristics six These and K. h Otml nocmn o CAttut Law, Antitrust EC of Enforcement Optimal The Institute Wils, Dekeyser 27 forthcoming 8.7.2.3; the tive at ol Competition World “The Rights

540-542; Function Conference and and Combination 10 of in

rnils f Erpa Attut Enforcement, Antitrust European of Principles C. Defence”, The Optimal Enforcement of EC Antitrust Law, Antitrust EC of Enforcement Optimal The in B.E. Gauer, on EC International Antitrust 201, Hawk of “The paper

the and (ed.) New Investigative presented Enforcement: chapter Antitrust Enforcement 04 nul rceig o h Fordham the of Proceedings Annual 2004 6 at balance of balance probabilitiesof ”. of and the Law

as A Principles of European Antitrust Antitrust European of Principles 31 Prosecutorial note & Legal System st

P Annual olicy 4 (Juris and a for

bove, (New Fordham Economic Articles Publishing Function as

as York, section note note 81 Corporate 8 Analysis” 2 4 October 8.7.4.5; and and 2005), a a bove, bove, the 82 2 9

Article the company substanti 13 this the fine n 99 te uoen omsin f Human of Commission European the 1989, In case a fine would of 6 Court Commission 50; was 82; 11 ECHR of

ve to no. 3 imposed the offences are defined by a general rule, a general by defined are offences the Bendenoun v France,

of , Germany v Özturk issues suspend taken eao Lns GmbH Lines Senator June ha of 56672/00), Concurrences N°1-2006 €273 ve (right

Human

2004 w resulted in by ere of million the K.Dekeyser andC.Gauer, asnote10above, 15 the http://www.echr.coe.int/Eng/Judgments.htm. the of

determined. Human

payment as

Rights access European substanti the in to accessible on the question the judgement Senator to judgement Rights, after of insolvency court), judgement ve v. admissibility The

Commission; the fine

h 1 Mme Sae o h Erpa Union European the of States Member 15 the 12 14 at proceedings the Lines. It decided that the sanctions was http://www.echr.coe.int/Eng/Judgments.htm Stenuit v France, v Stenuit application in EC of of . Doctrines Doctrines I that raised. Senator

and

the the of Court The

it of 21 24 liquidation the see bef EC was

The February was February 16 applications of Grand Lines 8 ore Courts required

June First declared

European the decision W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? GmbH Chamber 1976, of Instance EC 1994, rejected 1984,

to the at inadmissible by It Courts. alleged pay of 541. Commission Series Series company Series O Nse St. Neste OOO 11 Decision the decided the fine July a request A A A violation no. claimed no. no.

bef bef by 1989, of to 284, had 73, 22, ore ore

the set 10 of

o rmnlz attut nocmn, hs s undoubtedly is this enforcement, antitrust criminalize to already at firstinstance. function prosecutorial adjudicative and investigative the the from of function separation require to appears Rights Human of Court European the of law case the areas those law.In domestic under criminal considered areas in or law criminal of areas traditional availablemore be in to not appear however does ECHR 6(1) Article of requirements the 17 rvds h fl gaate o Atce () ECHR. 6(1) Article of guarantees full the provides made before thus a judicial body decision that has anyfull jurisdiction and that challenge to able are concerned persons administrativeauthorities,providedthe thatto entrusted be are which “criminal” Article 6 ECHR can within the wider meaning of offences of punishment and prosecution of the or reasons for obligations and that, rights civil ruled of determination has the efficiency, Rights Human of Court European the Indeed, functions. or function prosecutorial investigativeand the from function separation decision-making the the on of Rights Human of Court European the 20. Article 6ECHR. criminal withinthewidermeaningof applicablethe law,domestic onlyproceedingsarewhich and under criminal as considered are which or sense, narrower traditional, more a within criminal are which proceedings enforcement between distinguish to appears of Rights Human Court European the ECHR, 6 Article of requirements the compatibilityspecific proceedingsof with the substantive 19. Member States, or even at the level of the EU institutions,EU the of level the States,ateven Member or 21. 1. USantitrustenforcement in theEUMemberStates? criminalize antitrustenforcement II. Isthere atendencyto aiety rvds h fl gaate o Atce 6(1) Article Commission’s decisions. of guarantees ECHR and which undertakes a comprehensive full the review of the provides manifestly Instance,whichFirst anaction of Court forannulmentEC beforethe bring can European fines imposing of decisions addressees Commission the that given function, making decision- the with the function combines prosecutorial and Commission investigative European the if even ECHR, Article 6 with incompatible not are institutions EU the of level the at those as such proceedings antitrust that means 20 18 19 It should howevershould It lawthat,case out its pointed in be on To the extent that there currently is a tendency in the EU Judgments EU institutions. paragraph See 25 February 1997,Findlay v UnitedKingdom, Reports 1997-Iparagraph 79. of See Bendenoun vFrance, See thosefacts. ” of appraisal legal both the Commission’s an undertake exhaustive of review substantive and/or 81(1) [Article EC], 82 to Article it mayupon applicants call the infringementof an paragraph This distinction appears most clearly in the case law of of law case the in clearly most appears distinction This

21 Judgments paragraphs Judgment February 51, 719: of

of of 23 68 in hnteCuto FrtIsac eiw h eaiyo a decision the legality of First Instance reviews of the Court “When 1984,

26 1 June to ietre CR n Ohr v Commission, v Others and CBR Cimenteries February A/284, paragraph 46. October 73 , Germany Öztürkv 1981, below 1984, 1983, e ope a Lue ad e eee Belgium, v Meyere De and Leuven Van Compte, Le as 19 18 to This alternative means of satisfying De Cubber v Belgium, Albert and Le Compte v Albert Belgium, EU Member A/73 paragraph States and A/86 56, paragraph and paragraphs of findings footnote A/58

24 41 February below paragraph 31-32, ffact and its of 243 17 This as finding and a 1994, to bove, A/43 29, the of 20 3

June century; n i 20 t tn years. ten to 2004 in and for to $10 million in 1990, Gallo, Dau-Schmidt, Theory” the in Bak following more (2001)69George Washington 693at LawReview Act, ch.647,26Stat. 209(1890). 31 2000), Amendments Procedures B.E. Sherman er, Deterrence 22 K.G. English see of (1983) on

“The statistics, Initially the maximum jail term was 1 year. 1 was term jail maximum the Initially Hawk 40.

Justice Concurrences N°1-2006 N. Competition the accessible Dau-Schmidt, thehistoryof “Sentencing Act: Use Green, Article 419of 9William 75at Mitchell LawReview Loi Le Chapelier 16 and (ed.), in Act Antitrust of see 30 A th

the century Penalties

Since then, enforcement has increased has enforcement then, Since Study Criminal J.C. “The of at 03Ana Poedns f te oda Croae Law Corporate Dordham the of Proceedings Annual 2003 United

P 1990, Antitrust Gallo, http://www.usdoj.gov/atr/public/speeches/5076.pdf, olicy of enforcement UScriminalantitrust from 1890to2001, Road Enforcement, J.L. legislation,

theNapoleontic Penal Code. Act, Law Law

Pub. States of in Craycraft K. 27 to

and Pub. 2-17 the Remedies Offenders: and to $100 million in 2004. Dau-Schmidt, Conviction L. and Economics” Global (Juris March which L. 25 No. Doctrines Doctrines I 1955-1997: h mxmm criminal maximum The and No. Japan”, 101-588, to Publishing Reconciling had Trading 1791, Act of Deter 93-528, C.J. –

The J.L. 694-696. (1994) ho 75-76. remarks Par a wever An and 2004,H.R.1086. § criminal Craycraft Criminalisation System W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? § 21 4, ker, Empirical 2004), Punish 3, 16 Economic

104 fallen

by 88 29 “Criminal Research in Law and Law Researchin

(Washington cartel S.M. Stat. Stat. 13, Cartels and in Study” disuse Theory at Chemtob 2879, 1706, C.J. prohibition of 13-22. Penalties and

Par

(2000) Cartel by 2880 1708 with Bid- DC, ker, the 28 23 In at at

like theft. of criminal investigatory powers.investigatory criminal of a fullarsenal Justice canmakeuse of Department of the US 29. oiy n a Idvda Lnec Plc, hc allow which Policy, Leniency Individual an and Policy Leniency Corporate successful very a operates also Justice punishment are lefttoprivate treble-damage suits. as price fixing, bid rigging, market division, orcustomer division, allocation schemesamonghorizontalcompetitors. market rigging, bid fixing, price as such Act Sherman the of 1 Section of violations hard-core prosecutionJusticecriminal to limits of Department US the tradition behaviour,long as monopolistic by unilateral agreementsas well restrictive of types all covers Act Sherman 26. cartel activity”. 40 over conducting is Department Justice The sought. frequently now is leaders cartel of Extradition laws. US antitrust violating for prisons France, Canada, from Germany, people Sweden, and Switzerland Business have now served well.term in US as foreign but executives sentences, prison facing are who executives US 32 wide very a enjoy values antitrust consensus, US, the in Indeed, condemnation. moral strong rather a carries also It intent. criminal of finding a requires act Sherman the of 1 Section 28. disgorgement of disgorgementunlawful of profits. it which power,seek cases,protectionto consumer in used traditionally its had cases competition in applied recently FederalrelativelyTradeThe has Act. Commission Sherman the of 2 Section violationsof all and 1 Section violationsof fines, only it prospective, seeks other against injunctiveadministrative relief or civil of imposition the seek to or impose 27. 33 34 38 37 35 36 Program”, Overview by (Kona, Evidence”, No Review J. 27 S speeches/207226.htm. http://www.antitrustinstitute.org/recent2/355.pdf, at Section Bak See paragraphs 94to95and122125 below. See (1980) 68Georgetown LawJournal 1035at .W. 1999) andS. See from ideologic Problems Pa and Modernization Garza, comments/207122.pdf, at In The imposition of criminal penalties for violation of of violation for penalties criminal of imposition The s h U Dprmn o Jsie a n pwr to powers no has Justice of Department US the As o netgt ssetd rmnl nirs violations, antitrust criminal suspected investigate To lhuh h tx o te rmnl rvsos n the in provisions criminal the of text the Although W. . Davidow, the te, . that S h pia nocmn fEC The Law, Antitrust Optimal Enforcement of er, ol Competition World

the 1842 W. . Waller,

a Assistant words asnote22above, wide 207, 13 Chair,

Hawaii, Antitrust Waller, author; 37 attraction”, Of 127, 36 (E.D. (G)

American address spectrum “The “Recent of n piefxn i cniee t beimmoral, to considered is price-fixing and at

Recent Antitrust of

Waller, asnote33above, Robert Attorney 216, as at Commission La.

January and 32 the Incoherence note Angencies’ 136-139 bef referring 1969) FTC Antitrust US of Developments ore J.M. “the Reich, 33 at

American 407, Modernization 2.

Antitrust General, 714. a the rmnl netgtos f international of investigations criminal Act; 10, bove,

Connor, ideal as

and “antitrust Bi-Modal American of Study”, at in see the 2005), Institute

at Punishment footnote of 150; 409; v Mylan FTC v public last 210 Department Developments

In “Price-Fixing competition accessible The and criminal and accessible is at (97 60 (1997) Penalties” Bar see (AAI) opinion”; Commission, popular 1054andfootnote 1. 218. 48 230-232; Antitrust Association also letter 34 in 38 to Working Otherwise deterrence and La Antitrust” of The US Department of of Department US The monopolization US v Dunham Concrete Prods., Concrete Dunham v US as most at with continuing bs. at

of dated R.B. Justice Overcharges: note 7.

S. http://www.justice.gov/atr/public/

Inc., http://www.usdoj.gov/atr/public/ Division’s International “Suggested the Calkins, recently Midwinter Reich, Paper 4 January

62 public” a (2003) Antitrust bove, F. to “The No. “Corporate Supp. Law and Contemporary Contemporary and Law Criminal

receive S indictment section

Legal and 78 .D. Topics 5, Leadership 04-05, Antitrust Relevance” Division, Chicago-KentLaw

“has 2d 2005 Hammond, 35 33 and broad 25, 8.6.7, for

Enforcement a accessible Compliance compelling from 36 discovered Economic Antitrust Industry” Meeting and

to support (D.D.C. (2004) Crim. R.H. D.A. “An D.I. at 4

in of As to the choice the of person or persons to whom 16 of T-315/94, 11. olicy

the

of the November asnote4above, 12 can For

April for of Judge 5 Concurrences N°1-2006 Court J 40 th uly a

in [1991] Amendment Justice and violations have to be proven “beyondproven be haveto violations and Individuals detailed T-316/94,

and 1985 1999 particular Vesterdorf, of [1991] 2000

legal First ECR Corporate in in analysis chapter7. in Case Joined ECR T-318/94, or (August II-1695 Instance to Case not natural acting the 170/83 of II-869 C-279/98 Leniency in Cases US

the paragraph 10, voke of as T-325/94, person, Constitution;

notion 17 1994), yrtem . Compact v. Hydrotherm at Advocate-General, T-305/94,

the Doctrines Doctrines I December 916, P 41 P olicy Cascades v.Commission Cascades privilege see of 236, accessible T-328/94, Judgment

undertaking and The Optimal Enforcement of EC of Enforcement Optimal The (August T-306/94, and see 1991 43 US v White against Judgment W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? at T-329/94 10, Department in of in http://www.usdoj.gov/ Case T-307/94,

Case and the 1993), [1985] US, self-incrimination of hem T-6/89 the Court T-1/89

and

322 the accessible [2000] relationship ECR of 39 T-313/94, T-335/94 Court U Enic of

.S. Rhône- Justice

3016 First ECR

694 of at

49 cmeiin law”. “competition official term “antitrust”the alongside term the yearsusing started last the Commission’s in has European Competition for the General that Directorate noticed be also may It ea bss ne te C Treaty. EC the under basis legal necessary the to as relevance some had provision this that considered have also may 1/2003, No Regulation adopted it when Council, EU The ECHR. 6 Article of requirements substantive the with proceedings those of compatibility the of question the for rather but institutions, EU the of level the at proceedings enforcement antitrust the to applicable is ECHR 6 Article whether question the for not relevance 48 44 . As nature”. law above, criminal a explained Commission of be European not the “shall fines which imposes by decisions the that Regulation No1/2003expressly35. Article23(5)of provides intent isthusclearly notrequired. Criminal negligently”. or intentionally “either EC 82 or 81 Article infringe wherethey undertakings on imposed be can 34. group. the in companies the of more or one on imposed were fines decision, or a consisted groupcompanies,of of in which case fining the of addressee obvious the was which person, legal other or company single a with coincided invariablyeither EC 82 or 81 Article of violations havecommitted to found undertakings the Indeed, persons. legal other or companies has never occurred: up to now, all finessituation have now,this beento imposed on up 1/2003 No Regulation and 17 No Regulation under fines imposed has Commission the which ”. Community [European] our of verybasis whichthe forms competition, of charge declared in that “cartels are cancers Commission on the open market European economy, the of instance, in a speech in 2000, Mario Monti, the then Member particular.in Forcartels condemnationof of rhetoric the in years from the the Europeanside of Commission an increase EC. On the other hand, there appears to have been 82 in the last and 81 Articles of violations of condemnation moral of absence the reflecting as read be also nature”could criminal 36. for instancewhether theyare taxdeductible. national law, under fines such status of the to as importance 47 46 45 According to Article Regulation23(2) of No 1/2003, fines behaviour?”, See 2000),accessibleSeptember at “Fighting Sweet &Maxwell 2005),at In en.html . reasons natural of OJ which and footnote 20 See See furtherparagraphs 148to154andfootnote 192below. Paragraphs 21and 22. Dr Henss’ shall not be of of be not “shall decisions fining that affirmation The

companies r-nuae Pipes , Pre-Insulated March L24/1, 44 Article rnils f Erpa nirs Enforcement, Antitrust European of Principles the the unexplained) person, website 88, s liability. Court 2002 Cartels and 3(d) and speech which paragraph Dr. in found of of C.S. W

Case

the W. at hy it DG 45 to that the

Kerse held Henss, hs rvso apas o ae some have to appears provision this and Decision T-9/99 avoid 49 one Competition: paragraph 7-090. 3 s hitpe Hrig a pointed has Harding Christopher As 105 the How? rd jointly

and of Nordic http://europa.eu.int/comm/competition/speeches. imposing but European of HFB and Others v Commission v Others and HFB

of the W N.

the the

and hy 21 Khan, Competition undertakings

judgment Commission should October severally the fine http://europa.eu.int/comm/competition/index_ Commission EC Antitrust Procedure Antitrust EC we 46 1998, on t a as hv some have also may It lia of be P him, ble

appears was olicy as concerned the had

, Cartel Pipe Pre-Insulated note for EC

controlled identifying Conference “intentionally” the fine; to Court 2 47 a with ha [2002] bove, ve of

see cartels and (5 made instead

(Stockholm,

section th First ECR recitals

ed,

managed not an and Thomson a Instance II-1530, established effort 1.1.4.3.3, collection 157-160 collusive [1999] 11-12 by (for of 48 in 5 – a

Harding, 13 Harding,

Wa i epcal ntbe n hs akn i the is ranking this in notable especially is “What European 51 held, December [2002] valid a bove, Commission Treaty expired on23July also No on as under “Business OJ

note 17 that, Models after the 2001 Concurrences N°1-2006 C45/3, and 50 Regulation method in the Article a in Notice assessing bove, of Cartels 404. publication Joined

replacing Regulation” 52

of at 65(5) points, moving up and down and up movingpoints, ordinal on price-fixing”; fines in cartelcases, [1996]OJC207/4. No 412.

Cases as the fines setting [2001] immunity 1/2003; 2002. a of It gravity the by Criminal T-45/98

the should

(2002) the ECR earlier ECSC see European judgment of from fines ho II-3823, and imposed

Article Doctrines Doctrines I the Activity: 4 wever Treaty, European asrct ora o uoen and European of Journal Maastricht T-47/98 infringement,

be of Commission 43(3) paragraph and [1998] pursuant

pointed the Reconciling Krupp Thyssen Stainless and Stainless Krupp Thyssen Commission reduction of EC W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? OJ

Regulation Court out factors relating to the to relating “factors 199; see also judgment C9/3; to of that Article

of North its of these Notice fines 53

the First guidelines, Such a Such No EC significant guidelines American 15(2) in Instance 1/2003. on Courts cartel the of 50 as

60 59 58 40. omsins oes f netgto i to respects. two in investigation of powers Commission’s undertaking an is individual the (unless individuals not them, concerns programme only leniency the undertakings, on fines impose rceig cnutd y h Erpa Commission, time. over European increased significantly the have they by conducted proceedings 42. incomplete ormisleadinganswer member”. given by astaff incorrect,byan set Commission time-limit rectify the a within answerto “fail”misleading or or incorrect an “givefacts ”, on thatundertakings on providesfines foronly 1/2003 RegulationNo of 23(1)(d) answers.Article misleading or incomplete incorrect, givingfor answer,to refusal fora nor anysanctions with questioned thus However, Regulation No 1/2003 does not threaten subject- the and the individuals purpose the of inspection matter and to to record the answers relating documents or facts for on […] explanations undertaking the of staff of member or representative empowered are inspectors the undertaking, premises an business of the at inspection an during that, provides 41. the of Member State where authority theinspectiontakes place. judicial national the from authorisation prior with executed be only can inspection such conduct to decision a that adds 21(3) Article premises ”. [those] in kept to prove a serious violation [Articlesof 81 or 82 EC], are being and to the the subject-matter inspection, of which may relevant be “ suspicion exists concerned, that books or other records related to the business undertakings and the directors of of employees homes the including premises, business than the premises other empowers in investigations conduct 1/2003 to Commission No Regulation of 21(1) Article First, crime. 57 56 55 54 criminal standard of ‘beyondcriminal standard reasonable of doubt’”. going too far to sayproveninfringement be the that must the to Kerse and Nicholas Khan, it “ Chris to fine, according a impose and EC 82 or 81 Articles of violation a find to satisfy to Europeanhas the Commission its decisions are subject to an exhaustive review by the EC EC the by Instance. First review of exhaustive Court an to subject are but decisions instance, its first prosecutorial in function adjudicative and the with investigative function the combines Commission As to the defendant companies’ defence rights in of antitrust Articles C.S. See notes18and9above. and C.S. Kerse andN. by instance the support to evidence See Atochem vCommission [1997]ECRII-919,paragraph 23. Elf paragraph accessible paragraph athttp://curia.eu.int/fr/content/juris/index_form.htm, 179. ECR, in published yet not Commission, European v Corp. Engineering e.o.JFE T-67/00 of

to Under For adetailedanalysis of See paragraphs 33 to35above. For instancethe mafia inItaly. Secondly, Article 20(2)(e) of Regulation No 1/2003 1/2003 No Regulation of 20(2)(e) Article Secondly, euain o /03 a srntee te European the strengthened has 1/2003 No Regulation

the the 26 54 K. Kerse Of course, since Of the European Commission can only EC June books Regulation Lenaerts 81 the Courts 15, and and 1980 judgment 55 and and N. 82 ). and is in records Khan, No of Order that Case

Khan,asnote47above. I. the 17, “failrefuseor provideto answercomplete a of fir the Commission must produce must Commission “the Maselis,

of thesechanges, see K.Dekeyser andC.Gauer, asnote10above. as EC m conviction that the alleged infringement took place”; took infringement alleged the that conviction m the under 136/79 the

note the Treaty” EC Commission 59 EC examination; “Porcedural 47 As to the standard of proof which proof of standard the to As Court National Panasonic v Commission v Panasonic National Court

a (2001) bove, is a high one, although it would be of of

of First paragraph 24

First ficials Rights see FordhamJournalLaw International Instance Judgment Instance could and 8-038. sufficientl only of Issues of

of 8 The

58 9 seek July 2004 in JoinedCases in July 2004

June the h European The f reasonable a if in y precise and consistent and precise y standard explanations EC 60 the 1997 [1980]

“ Court Enforcement to ask any any ask to in formula Case ECR of relating

T-9/97 see Justice 1615, 2056, ”. used for of 56 57 6

Ce document est protégé au titre du droit d'auteur par les conventions internationales en vigueur et le Code de la propriété intellectuelle du 1er juillet 1992. Toute utilisation non autorisée constitue une contrefaçon, délit pénalement sanctionné jusqu'à 3 ans d'emprisonnement et 300 000 € d'amende (art. L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection. inherently non-criminal, and that the EC TreatyEC thus wouldthe that and non-criminal, inherently according to which Articles 81 and 82 EC would somehow be haveview,suggested, the rejectedbeen sometimes has which to appear would unanimously, 1/2003 Regulation adopted enforcement Articles of 81 and 82 EC, the EU Council, which 48. Articles81and82EC.for violations of imprisonment, including persons, natural on sanctions for provide Regulation indeed can States of Member that namely 5 No 1/2003, Article in penalty” other “any terms the 47. g g in evidence toimposesanctionson natural persons where: “Information exchanged pursuant to paragraph 1 can only be used the following limitation: adds 12(3) Article evidence, in exchanged the thus information use and information, of kinds all exchange can States Commission the and Member the competition authorities of European the that provides 1/2003 No Regulation of 12(1) Article Whereas 1/2003. No Regulation of 12(3) Article by confirmed further is imprisonment, including individuals, 46. on fines or fines, imprisonment, orindeed“any otherpenalty”. criminal or EC, nature,administrative,criminal an 82 or or civil individuals,of or 81 Articles of violations for companies on fines civil or administrativefor 45. their nationallaw”. periodic penalty payments or any other penalty provided for in fines,imposing […] decisions […] take may they complaint, a on or initiative own their on acting purpose, this For cases. individual in Treaty the of 82 and 81 Articlesapply to power the have shall States Member the of authorities competition 44. Articles81and82EC enforcement of 3.1. MemberStates their cancriminalize in isolation Articles81and82EC. from theenforcement of for of Member States to enforce their national competition enforcementlaws criminal possibilities the restrictsSecondly, EC.it 82 for and allows 81 Articles provide it to First, States. States Member Member EU the in enforcement 43. enforcement intheEUMemberStates 3. TheEUframework for antitrust By thus allowing Member States to provideStatesallowingto Member thus By for criminal from apparent already is what confirms provision This receiving the the authority toimposecustodialsanctions.” by case, used this be cannot in exchanged However, information authority. receiving the rules of national the under of for defence provided as of persons rights natural the of protection of level same the waywhicha in respectscollected been informationhas the or 82EC]or, intheabsencethereof, a of foreseessanctions transmittingauthority the of law the providesthat 1/2003 RegulationNo of 5 Article ebr tts a tu i ter ainl a provide law national their in thus can States Member euain o /03 rms n w wy antitrust ways two in frames 1/2003 No Regulation as cvr pnlis on penalties covers also penalty” other “any That similar kind in relation to an infringement[Articles of 81 Concurrences N°1-2006 Doctrines Doctrines I W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? “[t]he the MemberStates. only at the the levelEU institutions of but also at the level of not EC 82 and 81 Articles of enforcement criminal exclude imprisonment specifically for bid-rigging. In Austria, bid-rigging. areprovidedfines non-criminal only companies,for also but for specifically imprisonment as well as companies,for derivativelyalso and individuals, for forindividuals. Germany,In are providedfines non-criminal and several joint liabilityfines forcriminal with managers)complemented are (with companies on fines non-criminal Greece, In fines. these forcompany the with liableseverally criminal character. In Malta, a have directors these may but for, provided be are held jointly companies and on fines only for, at least in theory.in least for,at companies, on but imprisonment for fines individuals is also non-criminal provided are for provided sanctions main the s el s imprisonment. as well as and individuals, companies on fines through enforcement, iiain f upy r rdcin mre-hrn and market-sharing production, bid-rigging. or supply of limitation price-fixing, for specifically individuals for fines criminal or disqualification for individuals, as well as imprisonment and/ director also but companies, provided for are fines criminal Member States to provide for criminal enforcement of States. of enforcement criminal for Articles 81 and 82 provideEC has been used by a numberMember to of States Member 50. 61 or agreements law competition national under prohibit to First, ways. three Regulation in forbids1/2003 No of 3(2) Article StatesMember limited are EC 82 and 81 Articles of enforcementfromthe isolationlaws in competition national 51. competition laws only theirnationalthe enforcement of 3.2. MemberStates cannotcriminalize Articles 81and82EC, asitdidinRegulation No 1/2003. forpenalties individuals, enforceto imprisonment, including providefor to States Member allow not thus could Council the thatTreaty suggests EC the in Nothing Council. the by directives to give effect to these principles are to be laid down EC, are only “principles”, and the 82 appropriate and regulations or 81 Articles in out set as undertakings, by positions prohibitions on restrictive agreements and abuse dominant of the EC, 83 Article fromapparent is as But, “undertakings”. onlymentions EC 82 and 81 Articles of textthatcorrect the 49. 67 66 65 64 63 62 See and Conference See alsoparagraph 64below on See alsoparagraph 64below onFrance. See alsoparagraphs 69and112below ontheUnitedKingdom. See alsoparagraph 69below onIreland. See note5above. See alsoparagraph 149below. Institute –International Lawand PolicyAntitrust (Juris Publishing 2005). forthcoming h psiiiy fee b Rglto N 120 for 1/2003 No Regulation by offered possibility The h psiiiis o Mme Sae t efre their enforce to States Member for possibilities The hs iw per ide msae. t s f course of is It mistaken. indeed appears view This 63 remarks Ethics Ireland and Estonia have provided only for criminal in on 65 in by n rne Cpu ad h Soa Republic, Slovak the and Cyprus France, In Competition B.E. International Gerard Hawk 61 Hogan (ed.) 66 Cases, Antitrust In Denmark and Malta, essentially Malta, and Denmark In Austria. in 2004 Annual Proceedings of the Fordham Corporate Law Fordham the Corporate of 2004 Proceedings Annual 64 Roundtable the n h Uie Kndm non- Kingdom, United the In 31 Law st

Annual & Debate P olicy Fordham

Session (New 67

Corporate York, IV – 8 Rights, October Law Privileges Institute 2004), 62 7

“Le Judgment cooperation 3 règlement of ECR How

Regulation Concurrences N°1-2006 I-4990, of will

1/2003 the mechanisms, it EC paragraphs w No ork et Court 1/2003 les

in principes as practice?”, of see note 34 and

Justice D. and 2 on d’ef a Schnichels, bove, block 69 36-37; of in ficacité Doctrines Doctrines I ht h pnlis which penalties the that

D. sections exemption 68 law September for Geradin et “The

(Intersentia a d’équivalence”, 1.2.8.2 more 1and2. chapters Netw W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? regulations, (ed.), 1998 detailed and ork 2004), oensto and Modernisation in 1.2.1

of forthcoming Case concerted analysis,

see Competition respectively. 99-121 Principles C-231/96 “[w] see and 70 in P.

niae ta te cnie ta Rglto N 1/2003 offence. cartel No the to Regulationapply not thatwould consider have they authorities that UK the indicated but 2002, Act Enterprise the of 60. Regulation No1/2003. Articles 11and15of in for provided as authorities competition of network EU the within and Commission European the with cooperation of mechanisms the with comply to have will they and EC, 81 Article to contrary thus is and States Member between trade affect may indeed establishactivities cartel prohibited to the havethat will they that 1/2003 Regulation of 3(1) authorities and courts, it would in my view follow from Article is investigated, States prosecuted and punished by the competent UK Member between trade affect may that activities 59. fully respected. thus equivalenceis of States,principle Member the between trade affect not do that activities cartel prohibited concern which cases prosecuting and investigating only of practice Unless the UK authorities were to develop an administrative EC. 81 Article lawcomparableto competition national UK I Chapter of provision the the 1998, Act Competition under the fall of prohibition only thus and States, Member between trade affect not do that activities cartel prohibited hand, other the on and, EC, 81 Article under falls thus and thatbid-rigging or may affect tradebetweenStates, Member market-sharing, or production, supply of limitation fixing, price- hand, one the on wayanybetween, in distinguish not 58. of 3(2) Article with Regulation No1/2003. compatible is law Kingdom United under prohibition this EC, 81 Article under prohibited also States, Member between trade affect potentially or actually they when are, bid-rigging and market-sharing production, 57. price-fixing, rigging. namely activities, cartel supply limitationor production, of market-sharing, and bid- prohibited the of more or one in engage will undertakings morethat persons or other one with agrees dishonestly she or he if fine, a or and/ offence,imprisonment sanctionablecriminal by this of guilty is individualprovides an that2002 Act Enterprise the of 188 Section Kingdom. United the offencein cartel by the 56. 71 dishonest activity byactivity dishonest catch to offenceaims activity.cartel dishonest The essentially different legal persons and the former is concerned with what is Act and the prohibitions Articleof 81 or Chapter I are aimed at UK authorities: “The cartel offence in Part 6 the of Enterprise 72 The three limitations mentioned aboveillustratedlimitationsmentioned be three can The No prosecution has been brought yet under Section 188 Section under yet brought been has prosecution No taken apositiononthismatter. Law Policy Proceedings the The in This acts/acts2002/20020040.htm. General Secondly, Section 188 of the Enterprise Act 2002 does 2002 Act Enterprise the of 188 Section Secondly, hrl, hn cs wih ocrs rhbtd cartel prohibited concerns which case a when Thirdly, First, given that price-fixing, limitation of supply or supply of limitation price-fixing, that given First, Roundtable 31 text & view 71 st (Juris P

Annual olicy for of has

the Competition, of Publishing

also (New Debate

Fordham Enterprise the been York, Fordham Session expressed 2005). Corporate 8 whereas the civil prohibitionswhereasindividualscivil the speaking Act October Corporate IV 2002 The by – an in 2004), Rights, Law is European a of accessible personal ficial Institute – International Antitrust Law and Law Antitrust International – Institute Law Institute forthcoming Privileges of Commission

the at capacity: Conference http://www.legislation.hmso.gov.uk/ European and 72 in In the view of the of view the In B.E. see Ethics has on remarks Commission Hawk to International in my Competition (ed.) by knowledge Kris ’s 2004

Directorate Antitrust Dekeyser Annual Cases, ne ver 8

in [euain o /03 does 1/2003] No [Regulation undertakings. of of Spanish the Secretary ficial-documents

Trade the English 77 76 and United and The cartel offence in the UK should UK the in offence cartel The I have difficulty seeing how one how seeing difficulty have I of Industry, Dutch (April version

State Kingdom .co.uk/document/cm52/5233/523301.htm. versions 2003), for , strumenti (gli “A World Trade 74 blee ht h idea the that believe I Doctrines Doctrines I accessible of Department

“a means” Class and

this Industry, sentence el medio, el Competition at (un moyen, Mittel ). http://www.dti.gov.uk/ccp/ of W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? use

J ), middel het section1.2.8.2. uly Trade the

75 Regime”, 2001, equivalent However, and accessible the Industry’s presented French of

the at end to this abuse for the future. Non-respect of this specific this of future.Non-respect the abusefor this to end an put to orderedhave wouldbeen concerned undertakings abuse,established,abusebeen the an had once which, under there of control of 2004, system a only prohibition, in cartel real no abandoned was only Luxembourg the phase, which first a one In through direction. same moving the in historically phases similar are jurisdictions most seem itwould that tocartels, regard with specifically century, 65. Communities andGermany inthe1950s. was the last to follow an earlier trend started by the European to be leading a new trend towards decriminalization. It rather hardlyconsideredLuxembourgthus be it. can to end an put to order the notwithstanding cartel continuewouldthe they those undertakings threatened with criminal sanctions in case wereit, owners,to the end an put managersdirectorsof and investigated,been orderedbeen had undertakings the and to had cartel a if Only cartel. price a operated and concluded having of fact mere the for all at sanctions no fact in were there reform, 2004 EC, the beforeinstance, for principle. Luxembourg, In 82 prohibition the and on based 81 not Articles were they to because comparable not fact in were States criminal Member these with in laws abolished were competition which enforcement older first explanation the The of some that is two phenomena. I believe, reflect, 64. administrative finesoncompanies. regimeenforcementcriminal with by newa regime onlywith competition earlier an abolished act competition Luxembourg, 2004 In the maintained. however was bid-rigging of of administrative system fines on companies. a by A specific enforcement criminal offence criminal of system a replaced institutions. In Austria, the 2002 competition law reform also comparable to the enforcement the EU system at the level of a by enforcement criminal purely administrative system of with only fines on system undertakings, earlier an replaced 1997, in effect into came which act, competition current the howeverprovidedstill forFrench in law. Netherlands,the In are imprisonment, administrative including sanctions, specialised Criminal authority. a Council, Competition the by imposed companies, on fines administrative on essentially relies which system, French current the introduced 1986 act of the competition 1977, in reform first a After criminal. was1958 and 1953 exclusively of acts competition the under enforcement France,antitrust In Netherlands,Luxembourg. and Austria the France, of examples the by illustrated is 63. 4.1. Decriminalization ontheonehand decriminalization andcriminalization. of States over the last 20 years, one can detect a double tendency 62. in theEUMemberStates antitrust enforcementcriminalization of 4. Decriminalizationand 78 These movementsenforcementThese antitrust decriminalize to See alsoparagraph 51above Indeed, looking at the whole of Europe over close to a to close over Europe of whole the at looking Indeed, okn a attut nocmn i te U Member EU the in enforcement antitrust at Looking h tnec t dciiaie nirs enforcement antitrust decriminalize to tendency The situation astothecurrent invarious Member States. 78 9

section of 174-175.

the 1.1.4.4, Treaty?”, 81 the and 80 82

91 90 89 to those of the US Department of Justice. theUSDepartmentof to thoseof competition authorities also operate leniency policies similar omsin n prtn a einy rgam for programme cartels. leniency detect to a authority competition the help that operatingundertakings in Commission European Germany, the followed have France, Finland, and including Netherlands the States, Member of number increasing an that mentioned be also should enforcement,it 70. above,mentioned already as system has been adopted in Estonia. In the United Kingdom, 87 86 85 law nature. functions, they evenonly anif impose administrativefines of Sweden and Finland, have to varying extents separated these several functions, EU Member adjudicative States, including and France, Spain, prosecutorial Belgium, investigative, of fully in separation the observed of issue specific the systems. levelOn criminalized either the below if remains even generally proceedings, level antitrust companies’ in defence defendant of the rights strengthen to and authorities competition the investigation of powersstrengthen the to of both broadtendency general, more a is companies,there on administrativefines on based enforcementremains antitrust where States Member EU those in that appear also would it institutions, EU the of level the at enforcement antitrust 71. all atorganized crime. if of forms serious States, most the for Member reserved be typically known, EU the in traditionally would ny a wl a a acin f ietr disqualification director of sanction individuals, a for as well as only, individuals for fines and/or imprisonment with punishable cartels,hard-core to offence,limited cartel criminal a added the criminal cartel offence.cartel criminal the given new been for has powers Kingdom, covert Trading of surveillance for Fair the investigatingpurpose of of United Office the the instance, In the authorities. to investigationinvestigating of powers criminal corresponding grant the of by accompanied been has Kingdom United the 69. law. national under prohibitions equivalent the and EC 82 and 81 Articles of breach for companies on fines administrative 88 see rnilso European EnforcementAntitrust , asnote2above, See Principles of Paragraph 41. with_leniency_programme.pdf. Competition: 2003), cartel At publications.htm. Sections See furtherparagraph 112below ondirector disqualification. Paragraph 57. See at http://www.oft.gov.uk/Business/Legal+Powers/Enterprise+Act/publications.htm. Trading, Similarly to what was pointed out above with regard to regard abovewith out pointed was what to Similarly h itouto o ciia pnlis n rln and Ireland in penalties criminal of introduction The s at f wdr rn t ciiaie antitrust criminalize to trend wider a of part As the the paragraph 89 time offence updated As mentioned above,mentioned As accessible “P 199-200 91 owers of

http://europa.eu.int/comm/competition/antitrust/legislation/authorities_

writing, – 31 list

for Guidance of a 86 on bove, at

investigating o sse wih tews rle on relies otherwise which system a to the the http://www.oft.gov.uk/Business/Legal+Powers/Enterprise+Act/ already

Enterprise and, website on as 17 the of to criminal of 87

Act the the issue

The Irish and United Kingdom United and Irish The the 85 European United 2002, the Enterprise Act 2002 has 2002 Act Enterprise the 25 90 of cartels such leniency programmes leniency such

Member no-action as Kingdom: – note Commission Guidance” States 71 letters above; Of 88 ha fice

(January ’s ve

Directorate-General for

section1.2.10. a see of leniency

individuals” Fair also 2004), Trading, Of programme; fice accessible of

(April “The

Fair for 10

92 95 of Kunzlik,

“Law the That Europe follows the US example in matters of Before the second worldBeforesecond war,the wide- werea cartels

Mémoires prohibited at an (Berg who in Law from as Economic A. 1994) and in “Cartelization note also Concurrences N°1-2006 “Globalization astoolder European precedents. von 1986); Germany, Against the Mar ‘dynamic duo’, along with the European Union. writes 95 at (F Bogdandy, U 93 ayard ket 26-28, a .S. (Kluwer that time. see Institution” bove, and in particular the history of Article of history the particular in and

Restraints at Organization: The approach” V. at also

1976) 140

Berghahn, 407. at and and, P.C. and 356-357 G. Law that Decartelization 98 Marenco, with

at 413 Mavroidis hybridization (1996)

of The United States, United “The However: (Summer Yugoslavia International

a Industry West German of TheAmericanization Competition and detailed ; 25 see 94 “The 411-413, Historical Doctrines Doctrines I However, the prohibition and History Economic European of Journal 2003) sections5.3.2and9.5. ho was wever in Birth description Y. in 2002) the antitrust Mény The Antitrust Bulletin Antitrust The (1957)” D. Europe,

Experience note of only Spierenburg 279-304,

(eds), Modern W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? European

21 of (1995) enforcement: 99 1870-1995:

a European Integration Integration European the The trendto The bove in Competition and strong and 151

Germany as country The Optimal The R. to (Weidenfeld ora o of Journal European resistance Poidevin, Rise 319; the where F older Law rom and and 97 96 5

74. thispaper. of IV part in afterwards with dealt be will harmonization EU without or institutions EU the criminalizationat levelthe of parallel without States Member EU individual of level the it is problematic that antitrust enforcement at is criminalized whether question The level. EU at harmonized is it whether institutions,EU or the of Statesor Member EU the levelof irrespective whether of such criminalization takes place at the enforcement is antitrust desirable. The of question is criminalization addressed conditions in general, what under or why 73. enforcement desirable? antitrust III. Iscriminalizationof 101 100 products concernedby theviolation. annualthe turnover the in of 150% of order the wouldin be offencescomparable of profitability and concealment fines ease of antitrust of other and levelcartels price minimumdeter to generally the required that argued I 2001, in (EUI) 76. fines companies would require impossibly high 1.1. Effective deterrence withonly fineson of imprisonment 1. Five arguments infavour nocmn t b efcie o ol i ter bt lo in also practice. but theory five in only not effective discuss be to enforcement antitrust finally criminal for fulfilled be and to need which conditions imprisonment, to alternatives then arevalid, offences,examineand whether there are equallyno effective antitrust for penalty consider for what antitrust offencestypes of these arguments a as imprisonment 75. the United and Kingdom. Ireland by exemplified as imprisonment, specifically more and the penalties, individual namely variant, of strongestintroduction its on focus however companies. will on I fines continue administrative spread which on exclusively jurisdictions the relying in instance programmes for leniency including of faces, different with cetd n h Aeia ltrtr, o uoen studies European no literature, American the in accepted generally appeared and Guidelines Sentencing its drafting when Commission Sentencing US the by upon relied been the average price increase from price-fixing. This estimate had the selling price as an estimate 10% of of I took the figure of 77. In this third part I want to address the question whether,wantaddressquestion I to thirdthe part this In Antitrust Law, asnote4above, Antitrust paper Antitrust Law Antitrust In a paper presented at the European University Institute I. This argument was based on the followingthe argumenton wasThis based hypothetical: Fines University W.P.J. Paragraphs 41to44and7172. As described above,described As I will first consider five arguments in favour of in favour arguments five consider first will I Atanasiu, Wils, on presented Undertakings Institute “Does European Competition Law Annual 2001: Effective Private Enforcement of EC Law Competition European 2001:Annual Effective EnforcementPrivateof (Hart at the (Florence, the Publishing Effective But 6 th

Competition Also chapter8,188-237. Enforcement 100 1-2 2003) Individual criminalization is a phenomenon a is criminalization June 411-452 2001), Law of Penalties,

Articles and later and 101 P in published olicy

The Optimal Enforcement of EC of Enforcement Optimal The 81 In

and Workshop Particular 82 in EC C.D. Require at Imprisonment?”, Ehlermann the European Not Only and 11

Bryant are 107 “Report that under only On the basis of these new surveys, I should haveshould surveys,I new these of basis the On http://www.oecd.org, at and the figur assumed paid national E.W. on Concurrences N°1-2006 several the e Eckhard, a would zero nature competition at years interest 9. be “Price after and e ven

19(note20). 103 impact ra 105 higher the Fixing: laws”, te.

gain

With if of The

from DAFFE/COMP(2002)7 one

Doctrines Doctrines I a hard Probability more w the ere core

violation realistic to at take 40(box 7.3). cartels higher. of W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? into

higher Getting is and obtained. account sanctions (9 interest Caught” April the Indeed, 104 ra fact against

The (1991) 2002), te, that

102 106 the my

products concernedby deterprice-fixing theviolation. not annualthe turnover the in generally of 150% of order the wouldin be will companies on fines which below floor the that conclusion the reach today still a 33% probability detection and of punishment, I would thus turnover, of 10% 5-year duration a and increaseprofitsin of 82. above 33%. probability detection and punishment in Europeof not to be the assuming by conservativeside the on safely very remain f piie lnec programmes. leniency optimized of use the particular in methods, investigative effective more on the amount of fines which canlegally beimposed. on theamountof higher fines are likely regularly to breach the statutory ceilings importantly,least such raised), be statutorycould as ceilings be impossible or unacceptable for various reasons.would level First (and high a such to fines of level general the raising siae f ewe 1 ad 17%, and 13 between of their estimate based Eckard Woodrow and Bryant Peter which on 1988 to 1961 period the presumablyimprovedsince has US the in rate detection the that out pointed been correctly has 81. conservative 5years. estimate of fourmyliteraturelast wouldalter yearsthe not in published 80. 108 83. re rbblt o dtcin s usd ti range”. this outside is detection of the probability that true believe to reason little is “there nevertheless that probably lower is in Europe probability than in the US. the that true remain still event any in would 110 109 113 112 111 114 115 As to the average duration of price-fixing cartels, the cartels, price-fixing of duration average the to As See Lessons note See Paragraph 78andnote102above. 33 above, to the W. probability fact Supreme overestimate Science: “How to is aei-brookings.org/admin/authorpdfs/page.php?id=931, this being California Law Review Risks” I See alsoOECD, asnote105above, D. asnote110above, BushandOthers, European EnforcementAntitrust , asnote2above, org/antitrust/remedies, at As See, for total Section as note1above. s o h poaiiy f eeto ad uihet it punishment, and detection of probability the to As s age i mr dti i m 20 EI paper, EUI 2001 my in detail more in argued I As suig hn 2% rc ices, n a resulting a and increase, price 20% a then Assuming would perceived overestimate me note 101above. Grimes, lik OECD, S that fines suggests 103 .J. turnover caught;

shortly ely (1989) to example, asto fines imposedby

again from of Evenett, Removing a

at Court effects Block bove.

Antitrust 12. as of J.E. to the the that are add after see 246

of note bad

the be I in gain of Cartel Harrington, would 1990s”

also only M.C. the that companies Science controllable; , Empegran v Hoffman-LaRoche probability

I things the over 105 presented from La undertaking M.L. 1051, paid the figur Levenstein also

Formation confidence Rationality w, (2001) a 5: bove,

the 1232 happening Antitrust Denger, several add most cartel participants don’t participants “most cartel thinkthey willget caught”. at and antitrust N. of my

e 1091-1095. at WorldEconomy and see would that

good Hawker, at 2001 13; individual concerned years and bias. “Too and N Assumption 13. R.B. the figur Remedies .D. to theEuropean Commission, theceilingof and at be V violation things EUI after Price-Fixing”, Y. . Indeed, Much

28. them, Weinstein, e Korobkin ven Applied D.

R. Suslo 108 ain paper in e decision-makers the

Bush, happening higher Lande is or Forum, in 1221, Article 109 chapter5. it probably and g from w, Too particular appears 113 15 because of the use of of use the of because to

by “International 110 and “Optimistic J.M. to if W Little”, deterrence at from Bill March Law 23(2)

.G. accessible oe ae opined have Some underestimate Amicus one T 1226; at to .S. Connor, 112 also

Bishop; that 28; the Shepherd w them,

and Ulen, when ere I believe I would of American 2004, within too and violation the people

Curiae

Regulation to through Economics” Biases at and low “Law J see the take J.M. Cartel point .J. accessible http://www.abanet.

them and the underestimate Flynn, also because consistently event brief Bar About into Connor, and is finesantitrust was fir probability Enforcement: S. obtained; rnilso of Principles Association, will No account

115

is Behavioral Semerano, (2000) in S. it at Personal question 10%of 111 1/2003,

st tend ignores Ghosh, the as http:// made It note tend 114 the the US 12 see 88 of to ,

tocapture most of the Werden andM.J. Simon,asnote116 above, Werden

(1997) Kraakman, in looking their annual turnover in the products concerned by concerned products the in turnover annual their of same their

that 386 fir and 12 names

J.L. sample at 58 without Organization Industrial of Review 118 “Corporate M.J. the Concurrences N°1-2006 ms Craycraft % 917, coming names of convicted w Simon, themonopoly pr ere

116 at becoming the fir

928 the of theproblem of back, and have Liability 117 “W

ms companies larger fir note 882. of J.C. or companies with very high asset- high very with companies or hy beenactive incartelstheirothermarkets aswell. would suggesting

technically price fixing

price fix 35, Gallo, Strategies ms, by ofits earned referring not found inability topay.

“Antitrust which ers ha that bankrupt. ve at in to Doctrines Doctrines I should and

928-929. companies been to the ha 171, means ve the empirical US USmanufacturing fir

Sanctions been a go in ble Because Costs 120 that between an to

to in found prison” empirical volved of W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? their survi estimates of

and Legal 1955

to ve data result

in (Winter a

ha the cartels, Fir Controls” study ve restrictions, and that imposition

may m’s been ms. 1993, based unions 1987)

Ability one very in

(1984) volved often on ha well The 119 the are of to ve a

ertr gt nros sy atr akn t a eaie who relative a to talking after say, nervous, gets the secretary If […] cold. the in out company thereby the protection, leaving potentially own his for conduct the report and own his forward on come may executive the report then first, conduct not the does company own the its if with example, leniency this for In employees. race a in itself puts company the report,then to not decides or delays companyHowever, the if prosecution. criminal avoid will executives cooperating its of under the Corporate Leniency Policy, then the company and all conduct self-reportsthe company the If risk. great at remains company exposure,the individual has employees its of one as long So […] themselves. conduct the report ensure companies to that watchdog a it as applications acts it corporate because works of It generates. number the in but receive, we Individual the of measure Leniency their Program and is up not value in realthe covering number The of individual from applications misconduct. companies prevent helps program corporate combining and individual leniency programmes: “the individual amnesty of practice Justice’s of Department 90. for the violation may have left the firm by the time the do toaformer employee. time the by can company a firm little be maythere and detected, the is violation left have may violation the for responsible managers the Finally, controlled. are management firms when arise also can It agents. their on sanctions sufficiently serious impose to able be not may firms because arise can situation deterrence.effectiveThis to lead not will resultthatthe exclusivewith corporaterelianceon sanctions capable adequately of controlling the be reality, behaviour its in agents,of not, may firm the circumstances of number a However,agents. its in of behaviour the influence to ability firm makes sense because in the general hasthe a firm relatively good to authorities the from of function shifting enforcement This law.the the respect agents its make to try or company to theundertaking if induce sanction, will corporate high, the sufficiently of threat the that is violations antitrust for companies or undertakings fining of logic the their employers. of investigations,interests cartel the againstin co-operation effect, in that they provide an incentive for individuals to offer 89. whistle blowing programmes leniencyand 1.3. Increased effectiveness of 88. responsible individuals withinthefirm guarantee adequate incentives for 1.2. Finesoncompaniesdonotalways higher prices. form of case), the fine may be partly recovered from consumers in the the be often will (as competition imperfect by characterized 121 123 122 s ct Hmod a epand ih ead o US to regard with explained has Hammond Scott As acin aant niiul hv aohr beneficial another have individuals against Sanctions As I also argued in more detail in my 2001 EUI paper, J.C. OECD, asnote105above, As note101above. 387,at Law Review 79 (1981) Punishment” Corporate of Problem the into Inquiry Coffee, ‘No Soul to Damn: No Body to Kick’: an Unscandalized Unscandalized an Kick’: to Body No Damn: to Soul “‘No 401-402. 123

at 121 16. Michigan 122 13

Hammond,

the Bak 125 ICN http://www.usdoj.gov/atr/public/speeches/206611.htm, at er,

as Workshop “Cornerstones Concurrences N°1-2006 note 22 at 16. a on at bove, 128 cartel, an individual who turns herself herself turns who individual an cartel, 708. Leniency of though, suggests that the net result

and an Effective S 129 .D. Programs

replicationthe successful of Hammond, 126 Doctrines Doctrines I Leniency (Sydney, 127 as Program”, note W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? 22-23 124 124

November 12-14. a paper bove,

as presented well 2004), as 131 132 of behavior”. of kind this for penalties and risks the about executives business other to message conspiracy, a price-fixing sent a doubtless in participating for fine substantial a and imprisonment of term one-yeara to 78, house, convicted agethe at sentenced, and of Sotheby’s, world-famousboardthe of the auction of chairman wealthy extremely the Taubman, Alfred A. of sight “The it: 133 134 membership andgeographic spread. in global even often international, been have years last the Justice in prosecutedand detected by of Department US the u ivsiaos i ta te xctvs i nt at o get to wantcaught andgoing tojailintheUnitedStates”. not did executives the that is investigators, our verified by and memberscartel the of mouth answer,the from border.the The Why?at ceased still conduct collusive the but the U.S. market was the largest and cases,potentially most profitable some in Indeed, market.U.S. the in sold they because consumers, U.S. target to opportunity every had that cartels to referring am I sanctions.U.S. of risk the worth not was it expand their cartel activity to the United States solely because not did but world, the around elsewhere and Asia, Europe, in We have uncovered cartels that operated profitably and illegally cartels from extending theirconspiracy intotheUnitedStates. global of number significant a deterred has States United the prosecutionin criminal investigationsthreatof our howthe of some in firsthand observing are Justice] of Department US 98. domestic less before”. than much today activity cartel is “there US, the in Calvani, Terry according to First, indicators. several by shown is US the in 97. violations”. antitrust to deterrent meaningful most the therefore,remains imprisonment, analysis threatThe of breaksjail. downis risk-reward whenrisk the however, conventional businessman, and inferno, the the To is army.prison the in than training unsettling more basic little be may penitentiary the in term 96. 130 International cartels often try to minimize their contacts in the States. United the from away stay to efforts their namely, – unlawful is conduct their that knowconspirators the which in cartels those to common characteristic another by illustrated is enforcement criminal of power “The consumers: US also those international cartels that nevertheless continue to target 99. Effective Private Enforcement of EC Antitrust Law Antitrust EC of Enforcement EffectivePrivate J .” deterrent effectiveextremely an are sanctions criminal that is practitioner legal a as experience “My published T. Much, We [the “We out: pointed has Hammond Scott as Second, The success the of current criminal antitrust enforcement a snatcher, purse the “For words: Liman’s Arthur In Third, as William Kolasky has indicated with regard to regard with KolaskyindicatedWilliam has as Third, on P remarks at See J.M. Connor, asnote33above, (Juris Publishing 2004),1,at Policy& Law Antitrust International Institute Law FordhamCorporate the of Proceedings S A.L. Critique” P. . .D. olicy 630-631; Calvani,

Lynch” Bauer, Hammond,asnote124 above, Liman,

Too Little, orJust Right?” Workshop in

(1977)

in “R (1997) “Enforcement 130 the in “The C.D. eflections 131 r s oeh ae hs oe eety put recently more has Bauer Joseph as Or the panel 86 Ehlermann Paper 60 at same The Yale Law Journal YaleTheLaw discussion the Law and Contemporary Problems Contemporary and Law on sense: Label of European the

6. Cartel and D.I. Manif Sentences: on 303,at (2004)16Loyola ConsumerLawReview at I. at Baker criminal Law 10;andS.D. Atanasiu, old 8-9. University

Means in and Critique” 619 Ireland”, sanctions B.A. 132 European Competition Law Annual 2001: Annual Law Competition European of at Institute Hammond,asnote32above, The majority of cartels of majority The (Hart 133

621, R Enforceing (1977) eeves, in at 71; Publishing and B.E. the

“The (Florence, 86 see M.B. Hawk 6 The YaleJournalLaw th 134 the also

Paper Competition Antitrust Mukase 2003), Antoine (ed.), 1-2 Label 2003 Annual 2003 y, June 387,

“Comment Winckler’s Laws: Sentences: at Law 307. at 2. 2001), 404: 619 Too and 14

Werden 49; of Stone, 135 at

the Tyler, People Why Obey theLaw (Yale University Press 1990). and 383-384;seealsoparagraph 97above. “The Global “Criminalizing “Sentencing and D.M. M.J. Gr Concurrences N°1-2006 Kahan, Competition eat Simon,

Reformer: the “Social Influence Cartel corporation” as note 140 Law Mario Activity: 136 116 Centre Monti’s a

(1991) bove, Lessons , 139 Social (Brussels,

at Doctrines Doctrines I Leg Volume 1,No1(Spring 2005). 71 137 934; from Meaning, Boston UniversityBoston Review Law acy Indeed, psychological Indeed, 29 G.E.

in the 11-12. September Article U Lynch, and .S. W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer?

Experience”, fi Deterrence”, 81 as 2004), and note Cartel 6 accessible a 138 bove, as fth Policy”, note 383 lunch

at 47 at at 6 commitment to the law.the to commitment people’snormativeother negativeon effectspossible as well as deterred, undesirably being behaviourlawful of punishment, risk the unjustified risking those to cost risk-bearing not the also but include punished, unjustly costs those of These suffering the greater.only the it ofimposing all are erroneously costs the fines, than punishment onerous 105. deterrence. case of a price cartel. price a of case paradigmatic the on based effectivedeterrence,achieveis to and that such fines should be supplemented by imprisonment only fines on companies would require impossibly high fines, 104. violations isimprisonmentdesirable? antitrust 2. For which typesof 143 142 141 cartels hard-core that hand, one the on saying, in consists 107. alternatives toimprisonment? 3. Are there noequally effective disqualification, may suffice. director with combined undertakings on For obvious. those other less types violations,of fines on often undertakings, or fines is behaviour pro-competitive and more substantial, as the borderline between anti-competitive and undesirablythat the risk of it, chilling lawful behaviour is of muchaware be often very will violation the of victims the as detect, to easier usually are they that seem would it restraints, vertical other horizontal agreements and Article violations82 EC, of including violations, antitrust of types other all to As schemes. allocation market and rigging bid fixing, price nakeddesirablefor horizontal, is imprisonment 106. with flagrant disregard for the law, with wilfulness being withwilfulness clear-cut violations.presumed incasesof law, the for disregard flagrant with acted or law the violating were they that knew individuals the that evidence law,is the there where of violations wilful for lie only should imprisonment that conclude could one clear-cut violations. onlyof case in imposed be Alternatively disqualification, with director combined companies on fines or companies, fineson them, committing undertakings not very infringements the are for anyway profitable of or which hide, types to difficult those are which For concealment. of ease and profitability their to as cartels price to comparable are which EC 82 and 81 Articles of violations of types those to 145 144 paragraph 132below. disqualifica in See See paragraphs 112and113below ondirector disqualifica tion. See paragraphs 77 andfollowing above. The See D.I. Baker andB.A. Reeves, footnote 32. for The aboveThe argumentation thateffective with deterrence Applying these two sets of criteria, it would seem that seem would it criteria, of sets two these Applying h aoe ruetto i fvu o imprisonment of favour in argumentation above The providing eody bcue mrsnet s mc more much a is imprisonment because Secondly, also impr United R.H. oved tion 145 Kingdom

for Kraakman, antitrust for a 142 criminal all types could be sufficient to achieve effective achieve to sufficient be could would enforcement” as 141 note of cartel thus

143 The conclusions reached only applyonlyreached conclusions The asnote130above, antitrust 120 Prison sanctions should thereforeshould sanctions Prison offence in

a (Summer my bove, violations; view added

at 865 1985) appear to fines at and see 623-624. The Antitrust Bulletin Antitrust The 887, to paragraphs ha on 144 and ve undertakings

str R.D. uck 57 Blair,

the and balance “A 69 and 433, suggestion a bove director at right,

444 and 15

the The Optimal The on .J. 147

forthcoming Werden undertakings; see 9A that y tion with paragraphs R.H. to in 45-65. Liability they Act under 9E my and orders regard Concurrences N°1-2006 on Kraakman, 2002, are of 2001 M.J. individuals Enforcement (Summer

Article not of a criminal law nature” law criminal a of “not the see in to – 148 EUI Simon, as the Company paragraph the Guidance” at note and 705. Contr paper, as enforcement 83 2005) fines required for would note as following, 71 of EC note ol Disqualifica Directors above;

European EC

37 120 of (May or ha note sanctions. 116

a Antitrust Corporate ve Article bove. a of bove,

see an and 2003), 101 a

Articles bove, advantage also

University It Doctrines Doctrines I

risksbeingimpossibly deterrence high. in a at ex post when they have to III-163 bove, would

La particular 876-879, at Of , and also more also and post, ex Conduct” accessible w, 81 931, fice

another

as and suf in

of Institute of in tion note R.D. that fice

148 82 Fair the

and (1980) the paragraph at W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? Act to EC 4 reason they Blair, same http://www.oft.gov.uk/ C.D. Trading, a Constitutional amend (EUI) bove, 1986, at could 90 the way as Stone, is The Yale Law

section note 150 Working that, Regulation le as “Competition uncontestedly as vel amended “The the belo 143 150

of just 8.7.4.5,

current 146 the On Treaty, w, a Paper as Place bove,

and is 149 EU No for by

114. as well asadefendable second-best. disqualification would thus appear to be director a imprisonment, useful complement, to alternative effective equivally an n sn a oa msae nt s uh s imprisonment as would, much as not message, moral a effect send and astigmatic have also financially. may compensate disqualification fullyDirector cannot company the which way a in concerned individual the hurt may company a of retirement, being barred from taking part in the management not ready is concerned person the for individuals. on fines If used, director disqualification is certainly more effective than be can it when hand, other the On management. middle for directors, not for used be only also can loss. It financial any for director former its compensate fully could company the and retirement, comfortable into move to occasion the be simply may disqualification director concerned, person the strong a deterrent as imprisonment. Depending on the age of 112. acompany.take partinthemanagement of or, in any way, whether directly or indirectly, to be concerned or companya of director a be to offenceher criminal foror a him is it CDO, a to subject is person a which in period the During years. 15 is CDO a under disqualification of period maximum 154 153 152 151 detectionand punishment. of a is there workonly will if deterrence Indeed, ensured. legislationbe muchsuch also effectiveoperation of The offence. acriminal creating legislation enact to suffice not does it deterrent,effective an as work to imprisonment, 115. alsoinpracticetheory but enforcement tobeeffective notonly in 4. Five conditionsfor criminalantitrust my view clearly no. by adding be solved privatefollow-on foransweractions damages?the in Here is companies on fines only by deterred 113. 3.3. Private actionsfor damages whistle blowing programmes. and leniency effectivenessincreaseddoes not of penalties,the namely individual adding of also advantage explained above companies the bring on fines to companies against for any as well as two.the fines, combinationAdding private of foractions fordamages as damages for much exists as problem just This pay. to ability wouldoften companies’level high the a exceed such of the fines by that concerned and productsviolation, the in turnover annual the 150% of of order the in be would cartels hard-core deter not generally will fines which below floor the that is companies Paragraphs 77andfollowing. See alsoparagraph 132below. See alsoparagraphs 107above See paragraph 104above. As explained above,explained As ietr iqaiiain ol nt per o beas to appear not would disqualification Director ol te rbe o hr-oe atl nt being not cartels hard-core of problem the Could Forparticular enforcement, in antitrust and criminal 151 but certainly more than fines. While not being not While fines. than more certainly but 153

and142below. 154 the main problem with fines on fines with problem main the 152

crediblethreat 16

in process paragraphs Doctrines Doctrines I favouring 155 ned i antitrust if Indeed, 123 to W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? the 125, investigators; Donald Baker see also D.I. 160 159 158 162 163 161 ant noe h piiee gis self-incrimination against privilege enshrined inthe5 the invoke cannot 124. or statements false making declarations. of or perjury to of subject penalties be the would also but protection leniency the lose would only not she or he or truthfully, and fully it answer must and question the answermust witness The industry?”. with respect to other products in this etc. industry or in allocation, any other market rigging, bid fixing, price to relating you“do this: have any information whatsoever, like indirect, or direct something goes question The interrogation. jury grand or interview witness a of conclusion the atquestion” “omnibus so-called the pressureasking bythe increases also for which it can get immunity.get can it forwhich market, another in cartel second a reveals it if prosecution) from immunity get not does hence and applicant leniency cartel being investigated (where the company first was a not the for pay first have to will it fine the in discount additional substantial a get can company a which under option, Plus” Corporate Leiency Policy also includes a so-called “Amnesty a later stage that cannot benefit from immunity. from benefit at cannot co-operating that those stage later to a penalties reduced of promises muiy rm rscto t c-prtn companies co-operating individuals. to or prosecution from guarantee immunity can it an which and under Policy, Policy Leniency Leniency Individual Corporate a both has Justice of 123. 157 offenders andsentencethemtoprison. essential that judges and juries are willing to convict antitrust 125. to convict 4.3. Judges andjuriesmust bewilling investigations”. conduct witnesses, forensics, computer employ routinely nowinvestigators investigative techniques used to combat serious crime. Antitrust the SentencingGuidelines. 126. See the basisof It See paragraphs 31 and91to92above. see authorities at presented of Indeed, .F. See P. D.I. See 10. programme www.usdoj.gov/atr/public/speeches/2247.pdf; Associations T. Baker andB.A. Reeves, Third, as already mentioned above, in the US companies In the US, this is the case today, thanks at least in part to Second, as already explained above, the US Department For the threat of imprisonment to be credible, it is also credible,is be it to imprisonment Forthreatof the is http://www.supremecourtus.gov/,

Calvani, the Principles of European Principles Antitrust of Enforcement, note 40above. an Bak G.R. US Kunzlik, asnote92above, open leniency er, at Supreme Spratling,

which suchcalculations couldbemade, non-binding. are as as does the question and note note also Bar can not Antitrust 157 158 132 22 Court a Association only dispense ble t a as mk peiey calculated precisely make also can It th ho “Making a asnote130above. interviews, etc., in the course of of course the in etc., interviews, ‘ambush’ AmendmenttotheUSConstitution. bove, a

wever to bove, w of ork detect (Washington,

with 12 at

to if at of 694. Companies

January potential w 7-8. at cartels the

hat the 163 345-346andN. which It need

District extent

was should without 160 2005 D.C., Seealsonote159above. to leniency has not The Department of Justice of Department The an ha this and declared in of ve February be always Offer

United States v Booker, v States United co-operation is other Columbia’s noted S applicants still .D. Green, asnote21above, 162

T the the effective Hammond, possible hey that 16,

as US case

note 1999), Shouldn 35 the know Sentencing from th po in following

Annual existence 2 wers earlier that as a leniency accessible bove, ’t note

of the Refuse”, Symposium Guidelines,

times;

investigation. section the of 32 competition 159 applicants; at

a judgment accessible at a ‘wire’ 26-28. The leniency bove, see http:// 161 5.2.3. paper D.I. 17

on on at

i.a. also Ulen, 166 DeMott, Cohen

the Leadership, as that being shown by the Irish and Irish the by shown being that as Leadership, at sections and paragraphs “The the 168 speech and accessible my “Organizational Britsh 73 Indeed, if firms were not responsible for the responsible not were firms if Indeed, Economic programmes 2001 G.A. 8.6.7 Concurrences N°1-2006 above; by 2003). Chambers 90 Rabe EUI John and at The Optimal Enforcement EC of Antitrust Law , to http://www.oft.gov.uk/NR/rdonlyres/62E7FFA8-3803-440C- Case paper, at 9.5; (eds), V 95 at resulting ickers, 1889. 714. Incenti a of and for bove, as Debating Corporate Crime

Commerce 47. Corporate

note C. Chairman

ves at from as Harding 4: 101

to at to Since hardtheft, corecartelsarelike“Since the

410. the Care a on hn l i si ad done, and said is all When bove, Criminal combination Doctrines Doctrines I of and 31 increased About

the March

for J. Joshua, Board . other Sanctioning”, the 2003, effectiveness empirical evidence empirical of Law” reasons of W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? Regulating Cartels in CartelsRegulating

corporate

“P the (Anderson

(1997) olicy UK w in hy of

for

W and 169 Of imprisonment 60 167

leniency .S. markets fice 1997) Firms Firms Law and Law individual

Lofquist, of as

164 117, note Fair and and 165

f nirs voain, ol i m ve apa t have to appear viewstruck thebalanceexactly right. my in would violations, antitrust of of administrative system fines and director disqualification a for all types with offence cartel criminal a of combination provide for criminalpenaltiestoenforce Articles81 and 82EC. to not or whether choice the State Member leaveseach 1/2003 o ulc enforcement. public to elsewhere, private antitrust enforcement is inherently inferior problematic.consideredas haveI as Indeed, argued detail in eerd A aray etoe above, mentioned already As deterred. horizontal be to need also EC, 82 Article other of violations and agreements restraints, vertical antitrust including of violations, types other all However, schemes. and market allocation rigging bid fixing, price naked horizontal, for 175 harmonization? EU institutions,orwithout the criminalization atthelevel of Member Stateswithoutparallel individual EU at thelevel of enforcement iscriminalized IV. Isitproblematic thatantitrust 131. 174 173 172 171 133. accommodate to designed criminalization inindividual MemberStates. been precisely has 1/2003 No Regulation Indeed, problematic. not is harmonization, EU parallel without EC, 82 criminalization and at the level 81 the of EU institutions and Articles without of enforcement their criminalized have Estonia, and Kingdom United the 132. States criminalization inindividual Member been designedtoaccommodate 1. Regulation No1/2003has As appears to be recognised also in the US, the in also recognised be to appears As suits.treble-damageprivate to left is cartels hard-core than violations antitrust other of deterrence disgorgement, seek to Commission Trade Federal the for possibility the from yet”, as Paragraph 46. Commission’s[European] role istosafeguardthe consumers.” but off, bought be can companies Rival lawsuits. private policy in Europe is pursued largely by public authorities rather than through 2004, pay-offs WorldCompetition W.P.J. government enforcement isnotnecessarily ideal.”). federal to opposed as lawsuitsprivatetoward balance enforcement civil See Paragraphs 28and 29. Paragraphs 105 to107. Division, J. As argued above, As already explained above,alreadyexplained As The fact that individual Member States, such as Ireland, K note ay, letter Financial Wils, p

“Antitrust . 2 show 13; as a “Should bove, from in and w Times, hy note

B. chapter the

concerns regulators Pri Groom, 35 Assistant 10 473, vate a bove, 4; November

171 Antitrust are and see European are imprisonment appears only desirable

174 not at Attorney also Principles of European Antitrust EnforcementEuropeanAntitrust , of Principles necessary”, h Uie Kndm wt its with Kingdom, United The 2 so 2004, Or ytms xrm wihig f the of weighting extreme system’s (“Our leading Enforcement easily Comment, 175 General, p. dismissed”, Financial 16: article Article 5 of Regulation No of 5 Article It is a comfort that competition comfortthat a is “It “Microsoft’s Be “MS.dosh Department Encouraged Times, 172 Financial n h U, apart US, the in 26 Brussels 173 settlement November in this could be could this of Times, Europe?”

Justice trouble 30 – 2004, Microsoft’s

November (2003) Antitrust not p. o 12; ver 18 26

179 as at the level of theEUinstitutions.as at thelevel of law in all Member States, through EU harmonization, as well antitrust EU advantagesenforcementthe criminalizing in of fouror threehoweverwould haveenforcement.see I similar employees orformer employees. its of any on or applicant leniency the on sanctions impose anynor information followingobtained that information, to information, this use to not authority itself commits latter competition the unless another to transmitted be not will authority competition national a or Commission European the to programme leniency a under provided information providesauthorities,whichthat competition networkof the in the European Commission’s Notice on cooperation within addressed anticipatedand been problemhas this concerned, To the extent that cooperation under leniency programmes is the authority.competition Dutch the of or Commission European investigations the may the with cooperate individuals, as to willing these well less be protect as individuals, to that wanting result undertakings a as have could possibility This prison. to convicted individual an have to evidence in it use subsequently same and information the related themselves or collect to own European their of investigation the an start authority, from competition Dutch the information or Commission received having after instance, for thus could authorities competition Kingdom however, not, the does prevent not It imprisonment. does seek to that jurisdiction jurisdiction in a used be to imprisonment forprovide in collected information 137. 178 highly been years successful, past the for has enforcement antitrust criminal US way same as the companies, in on fines on only States and at the levelthe EU of Member institutions continues other to rely most in enforcement if eveneffective, be to provewill Kingdom United the in instance forenforcement 139. theEUinstitutions.as at thelevel of law in all Member States, through EU harmonization, as well antitrust EU advantagesenforcementthe criminalizing in of Member States is not problematic, does not exclude individual that there may be in criminalization that result the with institutions, EU the of level criminalization the atenforcement antitrust without of and harmonization, EU without States, Member individual in criminalization accommodate 138. theEUinstitutions? at thelevel of through aswell EUharmonization, as antitrust law inallMemberStates, EU criminalizing theenforcement of 2. Whatwould betheadvantages of [2004] See paragraphs 96to101above. 1.2.14. Commission 115, The fact that Regulation No 1/2003 has been designed to ril 1() f euain o /03 prevents 1/2003 No Regulation of 12(3) Article wud esnly xet ht rmnl cartel criminal that expect personally would I and OJ Principles of European EnforcementAntitrust of Principles , C101/43, 179 Notice even if most of the rest of the world did not did world the of rest the of most if even en tasitd Te United The transmitted. being intelligence paragraphs on cooperation 37 to within 42; see 178 also the Netw D. Schnichels, ork in another in evidence

Competition as as note note 70 2 a a bove, bove, Authorities,

at section 114- 19

on w their ere of is

also

to competition own, Concurrences N°1-2006 belie important they ve

that will authorities for the ha ve the competition

no effectiveness reason 180 181 to Article 12(3) of Regulation of 12(3) Article detect Article 12(3) of RegulationArticle 12(3) of to Doctrines Doctrines I authorities apply of cartels

leniency for leniency would in W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? the programmes. not absence either; be a ble see of Indeed,

note to leniency detect 157 182 if

184 185 186 and punishingworld-wide cartels. deterring in roledisproportionate a played has years recent law,enforcingcompetition EU in US waythe same as the in of task overall the in burden, the of sharedisproportionate criminal have a carrying that or role, disproportionate States a playing enforcement Member those in institutions, EU result the could of level the at nor others, in not and 144. requests for information. or companies may be more evasive in their answers to written in answering to on-the-spot questions during inspections, during questions on-the-spot to answering in 183 should considercriminalpowers seriously”. Commission the result, a as and significantly deterrence increases powers its of use effective demonstrates State Member Union for such a change. But the if United Kingdom or another thereEuropeannecessarythat supportwouldthe the within be have criminal powers in any area. At this time, it seems unlikely currently not does Commission European Also,the sentences. and these have not yet been used on their own for any custodial the of 25 Member States have such powers in their national law be such powers Should considered now?cartels? One obvious against answer is fight the the of part as sanctions such introducing considered not apparently Monti Commissioner has whydeterrence, effective more far provide 146. ones inIreland andtheUnitedKingdom]”. national better-resourced the as such [systems and under operating authorities competition effective, more quicker, enforcementto cartel European in role central its lose practice in may Commission The initiative. the taken have already may systems national the gear, into cranked Commission’s have the will investigations that time the By revisited. be to need may – core cartels – a central premise of its own modernization hard-against proprosalslaw competition Community enforcementof the in EuropeanCommission’s properits vocationprimarily that is view national level than at the European level. In such a scenario the cartels will be uncovered and prosecuted more efficiently at the whichin arise well might situation “the example: followtheir the and Ireland United Kingdom is successful, and other EU Member States in enforcement criminal if happen might law, Peter Kunzlik has made the following conjecturewhat of Commission in the overallenforcing task EU of competition 145. and all Law Institute–International S Session No P M. Bloom,asnote136above. transatlantic cartel animportant enforcement aspectof of cooperation”. concerned, the de facto rolestates as primary collaborators with the U.S.member in terms the of authorities the to return and Commission, back the take from potentially might It system. European European the the within of prestigeCommission the affect turn, in the would, than This level. rather European national the cooperation upon refocused enforcement substantially cartel become transatlanticmight by emulated then be states to were member Kingdom] other United the and [Ireland in adopted See Corporate York, F. . ee f rmnl acin do sanctions criminal “If words: Bloom’s Margaret In Specifically with regard to the role of the European of role the to regard with Specifically orh ciiaiain n oe U ebr States, Member EU some in criminalization Fourth, forthcoming Kunzlik, asnote92above, T 1/2003; paragraph its he Optimal EnforcementEC Antitrust Law of 8 IV Implications October – Law see Rights, 43 also in Institute 2004), B.E. a bove J .S. Privileges on Hawk

Venit as Human

as Conference well to Law Antitrust at (ed.) and as and such 352-353;seealsoidem,at Rights”, T. remarks 2004 Ethics Louk questioning on Annual o, International paper by in andPolicy

“The Competition several 184 Proceedings presented under Commission

participants (Juris Publishing 2005). Article Antitrust , fact that only six out

as 347-348: Cases 186 185 at

n of ote ’s the

New the 20(2)(e) at 4 in 31

a Law the Fordham bove, If theapproach “If Roundtable st P

Annual ower same &

s of ection P

to olicy conference, Regulation Corporate Fordham Question 8 Debate

.7.3.3. (New 183 20

191 judgment and the a power to modify or Court impose such penalties”. the giving about controlof unlimited “whichcompetence talks powerincludesthe of which EC 229 Article of version language German the from apparent is Courts, EC the by directly penalties of imposition of also but decision, Commission a take of review unlimited an can of only not jurisdiction”form the unlimited “ such That regulations”. such in for “unlimited provided Justice penalties the to of regard with Court jurisdiction the give may Council the by 83(1)]”. Article Justice Moreover, [under providesEC thatregulations229 adopted Article of down Court laid the provisions the of applying and Commission the of functions respective the define to (d) particular: in designed be “shall directives and regulations Council’s the that adds 83(2)(d) Article 82”. and 81 Articles in out set principles the to effect fromthe give to directives or regulationsappropriate “the downlay to a proposal on Parliament,European the majority consulting after and Commission qualified a by acting above, Article 83(1) EC gives an wide mandate to the Council, Treaty.mentioned alreadyEC as existing Indeed, the under Commission to the First Court Instance of would be possible 190 ol te at s poeuo bfr te or o First of Court Instance. the before prosecutor a as act then would Commission Instance.The First of Court the body, judicial as such independent an to power latter the of transfer the and and Commission, investigationthe by common in held currently decision of powers the of separation the require 152. Communityand theTreaty hasnotprovided the thenecessarypowers. of objectives the the of of operation one market, the common of course the in attain, to necessary proves Community the by action wheneverappropriate measures the take to Parliament, European the consulting after and proposalCommission froma the unanimouslyon acting Council, solution would be to use Article 308 EC, which empowers the provide a sufficient legal basis for introducing prison sanctions,the 151. effect totheprinciplessetoutinArticles 81and82”. givedirectiveslay anydownto “appropriateregulationsor to EC 83(1) Article in mandate wide the givensanctions, such prison that view fines in Article 83(2)(a) EC would not prevent the it from adding to come to were foreffectivenecessary are deterrence, sanctions referenceto the Council the if that, one could argue, a teleologicalon the interpretation,basis of the threat financial penalties, notof imprisonment. However, compliance with the antitrust prohibitions would be induced by 150. b Cour. Dans tous les cas, l’affaire sera instruite par la Commission européenne la devant plainte introduireune pourraient elle-même européenne Commission la ou Etats mois,les deux de êtrepourrait qui délai d’un l’expiration les à parties par acceptée solution d’une défaut A d’arbitrage. une et dans conciliation l’aiderait de qui tâche discriminations et ententes des constituerait consultatif européenne comité Commission un la de fin, multiplication cette A une Cour. possible la devant que procès autant évite qui procédure une d’établir c E ECHR; seeparagraph 22above. oce Mab solcher Verhängungunbeschränkteroder zu Änderung zur Ermessensnachprüfungund This M t he In any event,it were even concluded thatif Article 83 does not orrigé efore mphasis Of course, the introduction of prison sanctions would sanctions prison of introduction the course, Of essine, t s la ta te uhr o te ray huh that thought Treaty the of authors the that clear is It a doption requirement

t he ( 190 Bruxelles, R a C apport dded; ourt Such transfer of the decisional power from the from power decisional the of transfer Such of amn umfab nahmen

a t my he d ppears 21 es of

t E C ranslation

EC a fl separation hefs vril a T lso reaty; de 1 956), to

élégation f h rom Seealsonote9above. ave s t ee ”. at ows

“

b C T 5 e een omité 6: hat ine Zuständigkeit […] welcher die Befugnis Befugnis welcherdie […] Zuständigkeit ine

both “ a t

P ux he t he our l’application concrète, il conviendra il concrète, l’application our i M ntergouvernemental u from nderstanding C inistres ommission Article d es A ffaires w of 5 ould

ECHR t he c E réé S p trangères, paak rosecute

p and ar R la eport from

C u M onférence ndertakings ae p Article receding 1 20f/56 191 21 de ”. 6

Case they couldbeaddedthrough useof among Concurrences N°1-2006 C-176/03 192 the areas uoen omsin E Council, EU v Commission European Justice. of

crime Europe, [2004]OJC310/1. listed Doctrines Doctrines I in thethird subparagraph. the second W. P.I J. Wils, Iscriminalization ofEUcompetition law theanswer? subparagraph of currently

Article 194 whatever Treaty changesmightbeneeded. make to possible be desirable,also be will would it outcome this that consensus a is there dayStates. The Member all in the EU institutions the and, levelthrough of harmonization, want to criminalize would the Statesenforcement EU Member of competition EU law at the and Commission European 163. theConstitutionalTreaty.Article III-271of of establishment the “minimumwould to rules”, clearly possibleunder appearbe to limited through it States be Member harmonization, EU all in enforcement antitrust the 162. Courts ascompetentcourts. EU prosecutor,the as nor act to Commission European the cross- a allow having not howeverwouldprovision This dimension”. crime border “serious of perpetrators Member the the States, of courts competent the in prosecuting, of and investigating task the body new this to give and Office, Prosecutor’s Public European for a establish provides to which possibility Treaty,the Constitutional the of III-274 161. could beovercome laws by usingArticleIII-163instead. framework European of instrument the to limitation this whether doubtful the appear basis would it of alegal criminalization, for provision the providing specifically is Treaty III-271 Constitutional Article that Given 160. the EUinstitutions. of level the at enforcement antitrust EU of criminalization to door the close to Treaty)appears EC current the under regulations of equivalent laws,the European not (and laws European framework of onlyuse allowsArticle the that this fact the States, Member EU the all in law antitrust EU of enforcement the criminalize to used be undoubtedly could 159. 195 Paragraph 160. A possibleavenueA forward providedbe could by Article hra Atce I-7 o te osiuinl Treaty Constitutional the of III-271 Article Whereas n h ed o cus, h mi ise s hte the whether is issue main the course, of end, the In s led mnind above, mentioned already As 195 criminalization of of criminalization 22 n

Editorial Droit et économie Elie Cohen, Laurent Cohen-Tanugi, Emmanuel COMBE, Philippe CHONÉ, Claus-Dieter Ehlermann, Ian Forrester, Laurent FLOCHEL, Penelope PAPANDROPOULOS, Thierry Fossier, Eleanor Fox, Laurence Idot, E t i e n n e PF I S T E R, F r a n c i s c o RO S AT I, D av i d SP E C TO R. . . Frédéric Jenny, Jean-Pierre Jouyet, Hubert Legal, Claude Lucas de Leyssac, Mario Monti, Christine Varney, Bo Vesterdorf, Louis Vogel, Denis Waelbroeck... Chroniques EN T E N T E S Michel DEBROUX Laurence NICOLAS-VULLIERME Interview Cyril SARRAZIN Sir Christopher Bellamy, Dr. Ulf Böge, PR AT I QU E S U N I L AT É R A L E S Nadia Calvino, Thierry Dahan, John Fingleton, Frédéric MARTY Frédéric Jenny, William Kovacic, Neelie Kroes, Anne-Lise SIBONY Christine Lagarde, Mario Monti, Viviane Reding, Anne WACHSMANN Robert Saint-Esteben, Sheridan Scott, Christine Varney... PR AT I QU E S R E S T R I C T I V E S E T C O N C U R R E N C E D É L OYA L E Muriel CHAGNY Mireille DANY Tendances Marie-Claude MITCHELL Jacqueline RIFFAULT-SILK Jacques Barrot, Jean-François Bellis, Murielle Chagny, Claire Chambolle, Luc Chatel, DI S T R I BU T I O N John Connor, Dominique de Gramont, Nicolas ERESEO Damien Géradin, Christophe Lemaire, Dominique FERRÉ Ioannis Lianos, Pierre Moscovici, Jorge Padilla, Didier FERRIÉ Emil Paulis, Joëlle Simon, Richard Whish... CO N C E N T R AT I O N S Olivier BILLIARD, Jacques GUNTHER, David HULL, Stanislas MARTIN, Igor SIMIC, David TAYAR, Doctrines Didier THÉOPHILE Guy Canivet, Emmanuel Combe, Thierry Dahan, AI D E S D’ É TAT Luc Gyselen, Daniel Fasquelle, Barry Hawk, Jean-Yves CHÉROT Laurence Idot, Frédéric Jenny, Bruno Lasserre, Jacques DERENNE Anne Perrot, Nicolas Petit, Catherine Prieto, Christophe GIOLITO Patrick Rey, Didier Theophile, Joseph Vogel... PRO C É D U R E S Pascal CARDONNEL Christophe LEMAIRE Pratiques Agnès MAÎTREPIERRE Chantal MOMÈGE Tableaux jurisprudentiels : Bilan de la pratique des engagements, Droit pénal et concurrence, RÉ G U L AT I O N S Legal privilege, Cartel Profiles in the EU... Joëlle ADDA Emmanuel GUILLAUME Jean-Paul TRAN THIET Horizons SE C T E U R P U B L I C Bertrand du MARAIS Allemagne, Belgique, Canada, Chine, Hong-Ko n g , Stéphane RODRIGUES India, Japon, Luxe m b o u rg, Suisse, Sweden, USA... Jean-Philippe KOVAR PO L I T I QU E I N T E R NAT I O NA L E Frédérique DAUDRET-JOHN François SOUTY Stéphanie YON Revue des revues Christelle ADJÉMIAN Umberto BERKANI Alain RONZANO Bibliographie Centre de Recherches sur l’Union Européenne ( U n iversité Paris I – Pa n t h é o n - S o r b o n n e ) R evue Concurrences l Review Concurrences H T T T C Without tax Tax included ( France only)

❏ Abonnement annuel - 4 n° (version papier) 445 € 454,35 € 1 year subscription (4 issues) (print version) ❏ Abonnement annuel - 4 n° (version électronique + accès libre aux e-archives) 395 € 472,42 € 1 year subscription (4 issues) (electronic version + free access to e-archives) ❏ Abonnement annuel - 4 n° (versions papier & électronique accès libre aux e-archive s ) 645 € 771,42 € 1 year subscription (4 issues) (print & electronic versions + free access to e-archives) ❏ 1 numéro (version papier) 140 € 142,94 € 1 issue (print version)

Bulletin électronique e-Competitions l e - bulletin e-Competitions

❏ Abonnement annuel + accès libre aux e-archives 575 € 687,7 € 1 year subscription + free access to e-arch i v e s

R evue C o n c u r r e n c e s + bulletin e - C o m p e t i t i o n s l Review Concurrences + e-bulletin e-Competitions

❏ Abonnement annuel revue (version électronique) + e-bulletin 745 € 891,02 € 1 year subscription to the rev i ew (online version) and to the e-bu l l e t i n ❏ Abonnement annuel revue (versions papier & électronique) + e-bulletin 845 € 1010,62 € 1 year subscription to the review (print & electronic versions) + e-bulletin

Renseignements l Subscriber details

Nom-Prénom l Name-First name : ...... e-mail : ......

Institution l Institution : ......

Rue l Street : ...... Ville l City : ......

Code postal l Zip Code : ...... Pays l Country : ......

N° TVA intracommunautaire/VAT number (EU) : ......

Fo r m u l a i re à retouner à l Send your order to

Institut de droit de la concurrence 21 rue de l'Essonne - 45 390 Orville - France l contact: [email protected] Fax : + 33 (0)1 42 77 93 71

Conditions générales (extrait) l Subscription info r m a t i o n Les commandes sont fermes. L’envoi de la revue ou des articles de Concurrences et l’accès électronique aux bulletins ou articles de e-Competitions ont lieu dès réception du paiement complet. Tarifs pour licences monopostes; nous consulter pour les tarifs multipostes. Consultez les conditions d’utilisation du site sur www.concurrences.com (“Notice légale”).

Orders are firm and payments are not refundable. Reception of Concurrences and on-line access to e-Competitions and/or Concurrences require full prepayment. Tarifs for 1 user only. Consult us for multi-users licence. For “Terms of use”, see www.concurrences.com. Frais d'expédition Concurrences hors France : 30 € l 30 € ex t ra ch a rge for sending hard copies outside Fra n c e