Cartel Criminalization in Europe: Addressing Deterrence and Institutional Challenges

This Article analyzes cartel criminalization in Europe from a deterrence and institutional perspective. First, it investigates the idea of criminalization by putting it in perspective with the more general question of what types of sanctions a jurisdiction might adopt against collusive behavior. Second, it analyzes the institutional element of criminalization by (1) discussing the compatibility of administrative enforcement with the potential de facto criminal nature of administrative fines under European law and (2) evaluating the trade-offs between an administrative and a criminal model of enforcement. Although a “panoply” of sanctions against both corporations and individuals may be necessary under a deterrence perspective, this Article suggests that individual sanctions are unlikely to become a priority in Europe without a prior willingness to reform the current model of enforcement to increase the levels of due process. The debate concerning the right to a fair trial in antitrust proceedings and reforms to improve the efficiency–due process trade-off could be leveraged to open the door to the introduction of individual sanctions at the European level.