The Case For a Primary Punishment Rationale in EC Anti-Cartel Enforcement

"The paper aims to appraise the Commission’s anti-cartel enforcement policy from a slightly different perspective to previous academic analysis, by considering how far punishment theories originally developed in the context of penal theory underpin Commission anti-cartel enforcement. The next section of the paper introduces the principal punishment rationales that underpin fining policy at EC level, identifying desert and deterrence as the key influences on the treatment of cartelists. Section C considers the limitations of espoused alternatives to fines in promoting desert and deterrence rationales. Section D reappraises the

Guidelines, noting where obfuscation of deterrence and desert rationales in the Guidelines may promote collusion. Section E focuses on recidivist undertakings as an example of the failure of deterrence theory, proposing the increased use of rehabilitative treatment for repeat offenders. Finally, in Section F, I present my conclusions and advocate the establishment of a hierarchy of punishment rationales in European anti-cartel enforcement."