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In: The Challenge of Conflict: International Law Responds
In: Crime, Criminal Law and Criminal Justice in Europe

Abstract

The discussion in this paper examines the emergence of what may now be fairly described as the ‘European cartel offence’: that species of infringement of Article 81 of the EC Treaty, increasingly referred to as ‘hard core cartel’ activity, connoting real delinquency which justifies the imposition of severe penal sanctions. This development is significant not just as a matter of more explicit regulation within the field of competition law, but also as part of a wider context of vilification and criminalisation of certain well-established forms of cartel behaviour. As national systems (such as that in Britain) have introduced new criminal offences in relation to cartels, it is illuminating to consider and compare the evolution of the supranational ‘European cartel offence’. Having its basis in the infringement of Article 81 of the EC Treaty, the offence is necessarily one of collusion, being an agreement or concertation for anti-competitive purposes. As such, the more specific nature of the ‘offence’ has been established incrementally, very much as the product of argument presented in appeals relating to issues of evidence and penalties. It has been necessary to consider whether the offence resides in the planning or the implementation of anti-competitive activity, or both, and whether it comprises specific acts or a continuing pattern of behaviour. The mature version of the ‘offence’, worked out in the jurisprudence of the European Commission and the Community Courts, is based on the organising concept of ‘the cartel as a whole’. This process of forging a ‘European cartel offence’ provides an instructive lesson in the legal construction of criminality and the resort to a form of organisational responsibility. It also points to the emergence of a bifurcated system of both individual and corporate liability in this context.

In: European Journal of Crime, Criminal Law and Criminal Justice

Over the past thirty years or so the regulation of business cartels in an international context has provided an interesting site for the application of legal sanctions—both criminal law and otherwise, both penal and otherwise—in a way which is wide-ranging and with some impressive accumulation in quantity, although without much systematic and considered reflection on the theoretical basis or practical impact of this practice. From the point of view of both policy and justice, the calculation and critical assessment of such sanction accumulation might appear to be an important and worthwhile exercise. Yet the theory and the methodology of such an assessment appears to be insufficiently considered and worked out. It will be argued here that this is a matter which deserves some reflection and clarification, with some endeavour to work out principle and method for the purpose of calculating sanction accumulation and the matching of the latter with victimhood in this context.

In: European Journal of Crime, Criminal Law and Criminal Justice
Essays and Commentary on the European and Conceptual Foundations of Modern International Law
This collection of papers addresses two main themes: firstly, whether there is a distinctively European contribution to or even leadership in the contemporary formation and evolution of international law; secondly, the extent to which non-governmental actors (e.g. NGOs, international organizations, companies, individuals) contribute decisively to the formation of international law at the present time. These issues are explored within a number of different contexts of contemporary significance, in particular: the protection of human and minority rights; protection of the environment; control of transnational organized crime; prosecution of war crimes and crimes against humanity; the definition of statehood and the right to self-determination; transnational commercial and economic activity. The discussion is firmly located within the theory of international law and relations and also the continuum of international history.
Comparisons are drawn with both global and other regional developments to test the hypothesis of a 'European international law'. The work will be of interest to teachers, students and practitioners (legal and otherwise) in the field of international law and relations.