Hard Core Cartel Conduct as Crime: The Justification for Criminalisation in the European Context

Abstract

This paper explores further the rationale for criminalisation of involvement in the activity of business cartels and addresses both the reasons which may be put forward to justify use of criminal law in this context and also the risks in following such a strategy of legal control. The discussion is located 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 carrying out a criminalisation impact assessment in relation to cartel conduct, focusing on a number of issues: cost, legitimacy, the search for convincing retributive and deterrent argument, and the risk of both desistance and enforcement deficits.