Hard Core Cartel Conduct as Crime: The Justification for Criminalisation in the European Context
| DOI | 10.1177/203228441200300204 |
| Published date | 01 June 2012 |
| Author | Christopher Harding |
| Date | 01 June 2012 |
| Subject Matter | Conference Paper |
New Journal of Eu ropean Crimina l Law, Vol.3, Issue 2, 2012 139
HARD CORE CARTEL CONDUCT AS CRIME:
THE JUSTIFICATION FOR CRIMINALISATION
IN THE EUROPEAN CONTEXT
C H*
ABSTRACT
is pape r explores further the rationale for criminalisation of involvement in the
activity of business ca rtels and addresses both the reasons which may be put forward to
justify use of cr iminal law in this context and also the risks in follow ing such a strategy
of legal control. e discussion is locate d in the context of the emergent EU policy on the
use of criminal law, as summarised in the EU Commission’s Communication on EU
criminal policy of September 2011, and sketches some main points for consideration in
carr ying out a crimin alisati on impact asses sment in re lation t o cartel conduct , focus ing
on a number of issues: cost, legitimacy, the search for convincing retributive and
deterrent argument, and the r isk of both desistance and enforcement de cits.
Keywords: car tel; criminalisation; deterrence; impac t assessment; legitimacy
1. THE CRIMINALISATION DEBATE
Practice and dis cussion of criminal law as part of the armoury of legal control of
business cartels is now well under way. Following a long period during which the
North American (US and Canadian) approach remained apart f rom the rest of the
world, there has since the later 1990s been a rea l criminalisation bandwagon ev ident
in a number of other jurisd ictions across the world,1 so that cartels and cor porate and
individual ca rtelists now face the possibility of being subject to cri minal proceedings
* Professor of Law, Depar tment of Law and Criminolog y, Aberystwy th University.
1 For an overview of th is development, see the range of d iscussion presented in C. B eaton-Wells and
A. Ezrachi (eds.), Crimi nalising Cartels: Criti cal Studies of an Internation al Regulatory Movement
(Hart Publis hing 2011), and the summary accou nt in C. Harding and J. Joshua , Regulating Cartels
in Europe (2nd ed., Oxford Universit y Press 2010), at pp.329 et seq.
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