Cartel criminalisation and due process: the challenge of imposing criminal sanctions alongside administrative sanctions within the EU

Abstract

There is increasing debate within the European Union (EU) concerning the imposition of criminal sanctions upon those individuals who engage in cartel activity. For it to be legitimate, such cartel criminalisation must respect the due process guarantees contained in the European Convention on Human Rights (ECHR). Unfortunately the literature on this issue is deficient and the specifics of this legal challenge are not fully understood. In particular, a comprehensive analysis of the due process-related challenge presented when personal criminal antitrust sanctions are employed alongside administrative sanctions for a given cartel is conspicuously absent from the literature. This article rectifies this deficiency by examining this particular legal challenge and its relevance to information exchange, double jeopardy and concurrent antitrust proceedings. In doing so, it identifies practical techniques designed to meet the challenge of due process in this context, as well as the inherent tensions between due process and the objectives of European antitrust criminalisation.