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For hard-core cartels, criminal sanctions are not only necessary, in the sense that they help ensure optimal deterrence, they are also appropriate—especially given the secretive and typically dishonest nature of this particular activity. Criminal punishment should not extend however to the enforcement of Article 82 EC or to the ‘non-hard-core’ agreements under Article 81. In these cases only administrative and/or civil/private punishment should be imposed. In terms of law alone, the EC Treaty framework establishing the EC competition regime is arguably theoretically capable of providing a legal basis for EC criminalisation. Reasons can also be advanced as to why criminal sanctions should in practice be provided and/or imposed at that level. But any effort at EC criminalisation would involve significant legal and political challenges, and perhaps popular censure. It is principally for this pragmatic reason that criminalisation is best suited to national level, at least for the foreseeable future.

Keywords: EC Competition Law; competence; criminal punishment; deterrence and retribution; sanctions

Document Type: Research Article

Publication date: January 1, 2008

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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