Beyond the Theoretical: Articulating the Enforcement Strategies for a Successful Policy of European Antitrust Criminalization

There is considerable debate at present, particularly in the Member States of the European Union, concerning the appropriateness of imposing custodial sentences upon individuals who have engaged in cartel activity. In fact, cartel criminalization has occurred within some of the Member States of the EU and, at present, some Member States are giving it serious thought. The literature on EU antitrust criminalization has focused for the most part upon the theoretical justifications for custodial sentences. Some literature has also considered the legal challenges facing those jurisdictions that wish to introduce criminal cartel sanctions. To date, however, relatively little room has been devoted to the systematic analysis of the practical challenges involved in European antitrust criminalization. This is regrettable. This article addresses this deficiency in the literature. In particular, it analyzes the enforcement strategies that need to be in place to ensure that the criminalization of cartel activity within the EU achieves its objectives in practice.