Wagner-von Papp, F; (2010) Kriminalisierung von Kartellen. Wirtschaft und Wettbewerb (WuW) , 60 268 - 282.
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The article considers the arguments for and against the introduction of criminal sanctions in Germany for anticompetitive behaviour other than bid-rigging. It comes down in favour of the criminalisation of all horizontal hardcore cartels. The main argument is that criminal sanctions avoid the principal-agent problem that arises when only undertakings are fined, because criminal sanctions have a direct impact on the decision maker. As cartels are rationally premeditated infringements, the preconditions for effective deterrence are good. Criminalisation would alert the public to the social harmfulness of cartels. Criminalisation of hardcore cartels would remove the currently existing abnormality that actions which are socially much less harmful than cartels attract criminal sanctions while cartelists avoid the stigma of criminality. Despite good arguments for criminalisation, due care has to be exercised in the process: In order to avoid a chilling effect, there should be no criminal sanctions for vertical restraints or abuses of dominant positions. Before cartels are criminalised, it is essential that there be automatic immunity from criminal sanctions for leniency applicants that have successfully applied for leniency within the European Competition Network. The cooperation between the Competition Authorities and the public prosecutor should be strengthened, as should be the role of the Competition Authorities in the criminal procedure.
|Title:||Kriminalisierung von Kartellen|
|Keywords:||Competition Law, Criminalisation, Criminal Enforcement|
|UCL classification:||UCL > School of Arts and Social Sciences > Faculty of Laws|
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