This article discusses the possible criminalisation of EU competition law, and compares the EU regime to the national competition regimes of individual EU Member States.
It is, perhaps, time to take stock of the issue of ’criminal antitrust’ in the EU. In recent years there
has been a greater focus on the criminalisation of competition law, in particular in respect of cartels, in numerous jurisdictions around the world. The US has long advocated criminalisation and regularly sends individuals to jail for cartel conduct. Moreover, the majority of the twenty eight EU Member States currently have the ability to impose criminal penalties for some types of antitrust violations .
While actual enforcement of these powers has to date been thin on the ground, this
does not exclude the possibility that enforcement could become more active in the future – after all, actual criminal enforcement did not become commonplace in the US until many years after the criminal legislation was enacted. Some EU countries are clearly putting criminalisation high on their agenda as an enforcement tool against cartels. For example, the UK has changed its legislation with respect to the ’criminal cartel offence’ with the express purpose of increasing the number of criminal prosecutions.
In contrast, at EU level, there does not appear to be any political appetite to introduce EU criminal sanctions for a number of reasons explained below. Is this the right approach, or should the EU go down the path of criminalisation