Peter Whelan

St John's College

The Criminalisation of European Antitrust Enforcement: Theoretical and Legal Challenges

Across the globe at present there is an increasing tendency to criminalise cartel activity.  This phenomenon is observable within the European Union: under certain national laws, severe criminal sanctions - including custodial sentences - can now be imposed upon individuals involved in the process whereby their companies entered into a cartel. The introduction and the successful maintenance of such criminal sanctions both present a number of difficult challenges in the European context. Above all, the jurisdiction at issue should aim to operate the criminal antitrust re­gime in a manner which is theoretically consistent and legally sound, otherwise it risks undermining the underlying enforcement objective(s) and/or violating the mandatory legalities (including the human rights of the accused individual cartelist). Two separate categories of challenges, then, can be constructed: the theoretical and the legal. Currently, there are deficiencies in the literature concerning both of these categories of challenges. This thesis aims to develop the literature in this area by evaluating the theoretical and legal challenges of antitrust criminalisation.   Part I focuses on the theoretical challenges. The overarching concern here is to identify the extent to which personal criminal antitrust sanctions can be justified by reference to any established justificatory criminal punishment theory. Specifically, two (justificatory) challenges are identified and analysed: deterrence and retribution. Part II, by contrast, focuses on the legal challenges. It acknowledges that in pursuing the underlying objective(s) of criminal antitrust sanctions (i.e., deterrence and/or retribution), one must also respect the rule of law. Consequently, the overarching concern here is to identify and analyse the legalities to which European jurisdictions must adhere in criminalising cartel activity. Two particular challenges are evaluated in this context: due process and legal certainty. The extent to which adherence to these particular legalities further complicates the theoretical challenges is also examined where appropriate.   In analysing the theoretical and legal challenges, the thesis not only determines the extent to which European antitrust criminalisation is problematic, but also demonstrates how the responses to the challenges identified can have an impact upon the specifics of the measures required to ensure that the enforcement regime is effective in practice. Such practicalities, then, further connect the theoretical and legal challenges which are analysed.   Given the current tendency towards antitrust criminalisation and the significant resources required for the creation of a criminal antitrust regime, not to mention the potentially very serious consequences which face an individual cartelist subjected to a criminal process, the importance of the analyses presented by this thesis is clear.  

Start Date: 2006/10.

End Date: 2010/12.

• 2010- : Lecturer in Law, UEA Law School, University of East Anglia
• 2009: Winner, Best Article Prize 2009, Trinity College Law Review
• 2008-2009: Consultant Editor, Cambridge Student Law Review
• 2008: Guest Lecturer, The City Law School, City University London
• 2008- : Article Referee, European Competition Journal
• 2007- : Attorney-at-Law, New York State Bar
• 2007-2008: Managing Editor, Cambridge Student Law Review
• 2007-2009: Legal Rapporteur, The British Brands Group
• 2007- : Article Referee, Melbourne Journal of International Law
• 2007: Research Assistant (to Professor Sciarra), University of Cambridge
• 2006-2007: External Legal Researcher, Cooper Kenyon Burrows Solicitors
• 2006- : PhD Candidate, St John's College, Cambridge
• 2006: Co-editor of Current Competition Law
• 2005-2010: Research Fellow in Competition Law, the British Institute of International and Comparative Law (BIICL), London
• 2004: Successful Candidate, New York State Bar Exam
• 2002-2003: Master of Laws, LL.M. (Hons.) - Trinity College, Dublin
• 2001-2002: English Teacher, Heilongjiang Business & Technical College, Harbin, China
• 1997-2001: Degree in Law and French, LL.B. (Ling. Fran.) - Trinity College, Dublin
• 1999-2000: University of Poitiers, France (for Erasmus year)
• 1999: First Place in Year, Senior Freshman Year, Trinity College, Dublin 
• 1997: Entrance Exhibition Award, Trinity College, Dublin

 

• Competition Law
• Comparative Law
• Criminal Law
• EU Law
  

 

Books

• Current Competition Law: Volume V, Marsden, Hutchings and Whelan (eds), (London: BIICL, 2007), 713 pages; for more information see: http://www.biicl.org/publications/view/-/id/102/

Chapters

• 'Criminal Cartel Enforcement in the European Union: Avoiding a Human Rights Trade-Off', Chapter 10, Criminalising Cartels: A Critical Interdisciplinary Study of an International Regulatory Movement, Beaton-Wells & Ezrachi (eds), (Hart Publishing: Oxford, 2010) 
• 'Protecting Human Rights in the Context of European Antitrust Criminalisation', Chapter 9, The Reform of EC Competition Law: Towards an Optimal Enforcement System, Lianos & Kokorris (eds), (Kluwer International: Amsterdam, 2010)
• 'The "Consumer Welfare" Standard as a Form of Substantive Protection for Consumers under European Competition Law', Chapter 16, Own Labels, Branded Goods and Competition Policy: The Changing Landscape of Retail Competition, Bernitz & Ezrachi (eds), (Oxford University Press: Oxford, 2009), with P Marsden

Articles (Sole Author)

• 'Trading Negotiations between Retailers and Suppliers: A Fertile Ground for Anti-Competitive Horizontal Information Exchange?' (2009) 5(3) European Competition Journal 823
• 'Morality and Its Restraining Influence on European Antitrust Criminalisation' (2009) 12 Trinity College Law Review 40
• 'Contemplating the Future: Personal Criminal Sanctions for Infringements of EC Competition Law' (2008) 19(2) King's Law Journal 364
• 'A Principled Argument for Personal Criminal Sanctions as Punishment under EC Cartel Law' (2007) 4(1) Competition Law Review 7
• 'The Role of Third Parties in the Competition Enforcement Landscape: A Critical Review' [2007] Competition Law Journal 41  

Articles (Co-Author)

• 'Selective Distribution in the Age of Online Retail' (2010) 31(1) European Competition Law Review 36, with P Marsden
• 'Re-Examining Trans-Atlantic Divergences in Substantive and Procedural Competition Law' (2009) 10 Sedona Conference Journal 23, with P Marsden  
• 'Intervention and the Internal Market: Contemporary European Competition Initiatives Concerning Distribution in the Market for New Cars' (2008) 4(2) European Competition Journal 485, with P Marsden  
• '"Consumer Detriment" and its Application in EC and UK Competition Law' (2006) 27(10) European Competition Law Review 569, with P Marsden
• 'Consumer Interest in Competition Law Cases' (2006) 16(5) Consumer Policy Review 180, with M Hutchings OBE  

Case Notes

• 'Resisting the Long Arm of Criminal Antitrust Laws: Norris v. US' (2009) 72(2) Modern Law Review 272 
• 'The Degussa Case' (2008) 7(8) Competition Law Insight 13 
• 'Private Enforcement and Commission Decisions: The Crehan Case' (2007) 3 Cambridge Student Law Review 108

Legal Features

• 'Something of a Burden: Is the Passing-On Defence Appropriate?' (2008) 7(9) Competition Law Insight 5  
• 'When Markets are Failing: Part II' (2007) 6(2) Competition Law Insight 6, with P Marsden
• 'When Markets are Failing: Part I' (2007) 6(1) Competition Law Insight 6, with P Marsden
• 'Competition Law Feature: Recent Developments Concerning the Rights of Complainants and Third Parties under both UK and EC Competition Law' [2006] 14 Bulletin of Legal Developments 157

Book Reviews

• 'Book Review: Efficiency and Justice in European Antitrust Enforcement (Wils)' (2009) 34(1) European Law Review 160 
• 'Book Review: What About Law? (Barnard, O'Sullivan & Virgo, eds)' (2008) 4(2) Cambridge Student Law Review 337 
• 'Book Review: The Antitrust Religion (Rockefeller)' (2008) 4(1) European Competition Journal 397
• 'Book Review: Global Competition Law and Economics (Elhauge & Geradin, eds)' (2008) 66(1) Cambridge Law Journal 211
• 'Book Review: Butterworths Competition Law Handbook (Lindrup, ed.)' (2008) 4(1) Cambridge Student Law Review 141
• 'Book Review: Criminalization of Competition Law Enforcement: Economic and Legal Implications for the EU Member States (Cseres, Schinkel & Vogelaar, eds)' (2006) 2 European Competition Journal 451

Academic Papers 

• 'The Appropriateness of the Passing-On Defence in Private Competition Law Enforcement', paper presented at the UKAEL Conference: 'Competition and Private Enforcement: The Next Steps', University College London, 4 July 2008   
• 'The Concept of Price Discrimination under EC and UK Law', paper presented to the American Bar Association (ABA), Antitrust Teleseminar Series, 27 February 2006, with P Marsden
• 'The Contribution of Bilateral Trade or Competition Agreements to Competition Law Enforcement Cooperation between Canada and Chile' (London: CEPR, 2005), paper presented at the Centre for Economic Policy Research (CEPR) Conference, Brussels and Paris, April and October 2005, with P Marsden
• 'The Contribution of Bilateral Trade or Competition Agreements to Competition Law Enforcement Cooperation between Canada and Costa Rica' (London: CEPR, 2005), paper presented at the Centre for Economic Policy Research (CEPR) Conference, Brussels and Paris, April and October 2005, with P Marsden
• 'The Contribution of Bilateral Trade or Competition Agreements to Competition Law Enforcement Cooperation between the EU and Mexico' (London: CEPR, 2005), paper presented at the Centre for Economic Policy Research (CEPR) Conference, Brussels and Paris, April and October 2005, with P Marsden

Legal Submissions

• 'Reform of Regulation 1/2003: Correcting the Current Lack of Effective Communication: The Competition Law Forum's Submission to the European Commission in relation to its Consultation on Regulation 1/2003', 30 September 2008, with the CLF Working Group on Regulation 1/2003
• 'To What Extent Are Criminal Sanctions for Infringement of Articles 81 and 82 EC Necessary or Appropriate and Is There a Case and Basis for Criminalisation of Articles 81 and 82 at an EC Level?', 2007 Horsfall Turner Essay Competition, The Law Society's European Group, October 2007
• 'The Competition Law Forum's Submission to the European Commission in Response to its Green Paper on Damages Actions for Breach of the EC Antitrust Rules', 21 April 2006, with the CLF Working Group on Private Actions, republished in Current Competition Law: Volume V, Marsden, Hutchings and Whelan (eds), (London: BIICL, 2007)

Legal Bulletins

• 'Treuhand v. Commission' [2008] 15 BILD 169
• 'The O2/T-Mobile Judgment of the CFI' [2006] 10 BLD 109
• 'DONG/Elsam/Energi E2' [2006] 6 BLD 61
• 'Gonzales v. Oregon' [2006] 2 BLD 20
• 'Obituary: Chief Justice William Hubbs Rehnquist (1924-2005)' [2005] 18 BLD 212
• 'Sprint Corporation/Nextel Communications' [2005] 17 BLD 200
• 'British Horseracing Board v. The Office of Fair Trading' [2005] 17 BLD 196 

Commissioned Reports

• 'Trends in Retail Competition: Private Labels, Brands and Competition Policy: 2009', London: BIICL, May 2009
• 'Trends in Retail Competition: Private Labels, Brands and Competition Policy: 2008', London: BIICL, May 2008
• 'Trends in Retail Competition: Private Labels, Brands and Competition Policy: 2007', London: BIICL, May 2007
• 'Competition Law and the Consumer: Results of the Legislative Survey on Fourteen European Competition Law Regimes', London: BIICL, March 2007, with P Marsden and P Schepens
• 'Examining National Compliance with "Pro-Competitive" Regulatory Commitments Made at the WTO in the Telecoms Sector: The UK', London: BIICL, January 2006

Theses

• 'Globalisation and Antitrust: The Case for Increased Cooperation and Convergence in the Face of Excessive Extraterritorial Jurisdiction', Master of Laws Thesis, Trinity College, Dublin, September 2003  

Some of my articles can be found on the websites for the Competition Law Forum (CLF), the Centre for Competition Law and Policy (University of Oxford), and the Social Sciences Research Network (SSRN).

Presentations 

• 'The Morality of Price-Fixing', Centre for Competition Policy (CCP), University of East Anglia, Norwich, 25 June 2010
• 'Resisting the Long Arm of Criminal Antitrust Laws', Fifth Annual PhD Workshop, Centre for Competition Policy (CCP), University of East Anglia, Norwich, 17 June 2009
• 'Cartel Enforcement in a Globalised World: Extraterritoriality and Extradition', BIICL Annual Conference: Business and International Law, London, 5 June 2009
• 'The Norris Case', The City Law School, City University London, 10 November 2008
• 'Defences that are Appropriate in Follow-On Damages Actions', UKAEL Conference: 'Competition and Private Enforcement: The Next Steps',  University College London, 4 July 2008
• 'On the Need for Personal Criminal Sanctions as Punishment under EC Cartel Law', Third Annual PhD Workshop, Centre for Competition Policy (CCP), University of East Anglia, Norwich, June 2007
• 'A Principled Argument for Personal Criminal Sanctions as Punishment under EC Cartel Law', Law Faculty, University of Cambridge, May 2007
• 'The Role of Third Parties in the Competition Enforcement Landscape - Recent EC Developments: A Critical Review', 1st Junior UK Competition Lawyers Conference, Competition Appeal Tribunal, London, December 2006
• 'Private Enforcement of EC Competition Law', The Legal Implications of Business Conduct in Europe and Beyond: Risks and Rights, Global Legal Alliance Conference, Paris, October 2006
• '"Consumer Detriment" and its Application in EC Competition Law', DG Sanco-Consumers International European Competition Project, Second Regional Workshop, London, July 2006
• 'Introduction to EC Competition Law', DG Sanco-Consumers International European Competition Project, First Regional Workshop, London, March 2006
• 'Competition Provisions in Bilateral Trade Agreements', Centre for Economic Policy Research (CEPR) Conference, Paris, October 2005
• 'The Substantive Test under the European Community Merger Regulation', Trinity College, Dublin, April 2003
• 'The Concept of Dominance in EC Competition Law', Trinity College, Dublin, November 2002

Mr Angus Johnston (Fellow of Trinity Hall); and Dr Okeoghene Odudu (Fellow of Emmanuel College)

Dr Albertina Albors-Llorens (University of Cambridge); and Professor Floris Vogelaar (University of Amsterdam)