The Call for Criminal Sanctions for Enforcement of Competition Law and its Practical Concerns

Abstract

The effectiveness of competition law and its enforcement based on fines as well as behavioral and structural remedies has always been a debatable issue. It is argued that such competition law enforcement based on fines and other remedies has less deterrent effect compared to a system based on criminal sanctions. Therefore some of the jurists and authors have proposed that criminal sanctions should be included in the competition law enforcement. This paper seeks to examine the need and effectiveness of criminal sanctions in enforcement of competition law. It discusses the various justifications for the use of criminal sanctions for competition law enforcement such as Utilitarian Justification of Deterrence; Retributivist Non-Consequentialist Justification; Stigma Effect; To ensure the Obligation of Members or Agents of the Company; To Legitimize the Extra Territorial Application of Competition Law; and To Ensure Cooperation among Countries. At the same time this paper also identifies various practical issues involved in the criminal enforcement of competition law such as the problem of defining competition law offences; attribution of mens rea to corporate bodies; attribution of vicarious liability to the body corporate in criminal law; etc. Further the paper attempts to provide some pragmatic solutions for dealing with the various concerns raised by the criminal enforcement of competition law.