Furse, Mark --- "Issues Relating to the Enforcement and Application of Criminal Laws in Respect of Competition" [2006] ELECD 533; in Marsden, Philip (ed), "Handbook of Research in Trans-Atlantic Antitrust" (Edward Elgar Publishing, 2006)

Book Title: Handbook of Research in Trans-Atlantic Antitrust

Editor(s): Marsden, Philip

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845421816

Section: Chapter 16

Section Title: Issues Relating to the Enforcement and Application of Criminal Laws in Respect of Competition

Author(s): Furse, Mark

Number of pages: 27

Extract:

16 Issues relating to the enforcement and
application of criminal laws in respect
of competition
Mark Furse1


Introduction
In an amicus curiae brief presented to the US Supreme Court in the case of
Empagran2 the UK and the Netherlands Governments accepted that
`[e]ffective antitrust enforcement in an increasingly global economy
depends on close governmental cooperation and coordination as well as
respect for the decisions of other nations. Neither commercial transactions
nor anticompetitive behaviour by private firms is constrained by national
boundaries'. This case concerned the availability of treble damages and the
extent of the applicability of the relevant legislation to extraterritorial
claims, and is thus not directly related to the application of criminal law. It
demonstrates, however, the basic fact that competition law3 can no longer
be seen (if indeed it ever was) as a matter constrained within national
boundaries4 ­ that the opposite is true is of course the raison d'être for this
book. The enforcement of antitrust law by criminal procedures and penal-
ties in the US has an impact on the enforcement of competition law by civil
means in the EC, both directly and through the relationship between the
US and Member States of the EC in matters such as evidence gathering and
extradition. Criminal investigations in the US have uncovered cartel activ-
ity which has then been the subject of infringement decisions in the EC, and
there have been coordinated investigations where the EC has acted using its
civil powers and the US has acted ...