The chapter analyses the intersection of competition law enforcement and criminal justice. It sets out the primary theoretical justification for criminal cartel sanctions: (economic) deterrence. Supporters of antitrust criminalisation usually argue that the optimally deterrent cartel fine is too large to be imposed and that a global trend towards criminalisation of cartel activity can be detected at present. What was once primarily a US phenomenon has become international, with countries as diverse as Israel, Brazil and Australia pursuing a policy of cartel criminalisation. This chapter evaluates some of the inherent practical problems with criminal cartel sanctions. It provides insights into how best to ensure that cartel criminalisation improves the effectiveness of a criminalised regime’s competition policy. The chapter comprises two substantive sections. The first outlines the deterrence-based theoretical justification for criminal cartel sanctions. The second critically analyses two important inherent problems that arise when criminal sanctions are used to deter cartel activity: the difficulty of securing efficient competition law enforcement when criminal cartel sanctions are employed; and the need to connect the criminalised cartel activity to morally wrongful behaviour.

The chapter summarizes the most important issues of the research topic, with a special focus on the goals of sanctioning competition law infringements. Without efficient sanctions, there is a serious risk that competition rules would not be taken seriously, which would in turn undermine the performance of our market economy. Sanctions, deterrence and respect for law are inseparable friends. Although there seems to be a global consensus that the ultimate goal is optimal deterrence, this goal exists more on the policy level than in the calculation of the amount of fines and other sanctions in actual cases. The chapter discusses various options for measuring the efficiency of fines, concluding that this discussion can be pursued only at an academic level. A mix of sanctions can bring about optimal deterrence, including personal administrative sanctions. Two hypothetical cartel cases with likely fines imposed in various jurisdictions are presented to show that even similarly structured sanctioning regimes may result in a diverging level of sanctions being imposed due to diverging national approaches.

The sanction system of China’s anti-monopoly law mainly comprises administrative penalty and civil damages compensation, with administrative penalty as the core sanction method. The mode of administrative penalty combining confiscation of illegal income and fines established in the Anti-monopoly Law is not ideal in practice. Confiscation of illegal income is often absent, which greatly affects the deterrent capacity of anti-monopoly sanctions. At the same time, imposing fines is not a sufficient deterrent on its own. To solve the predicament, in the revision of the Anti-Monopoly Law it is proposed to cancel confiscation of illegal income and learn from the internationally mainstream anti-monopoly administrative punishment mode by integrating the function of confiscation of illegal income in the form of fines, that is, replacing it with the fines-oriented anti-monopoly administrative punishment model, in order to make punishment more certain. In addition, China should reform the anti-monopoly law fine system in order to increase deterrence, including clarifying the meaning of “sales”, abolishing minimum fines of 1%, and considering civil damages as a mitigating factor for fines.

The imposition of effective cartel sanctions is shaped by the policy of and guidelines from enforcing authorities, such as the European Commission, as well as the Union Courts. The application of the 2006 Guidelines on Fines has been guided by the jurisprudence of the Union Courts. The Courts have in general upheld the fining methodology expressed in the guidelines and have clarified the way it should be applied in specific situations. The fact that the system of setting and reviewing EU competition fines was found lawful adds to the legitimacy of such fines and their enhanced deterrent effect. The aim of authorities and reviewing courts is to impose adequate and deterrent sanctions, while respecting the rights of defence of the undertakings.

The Brazilian report describes the wide range of sanctions available to the Brazilian Competition Authority. It presents the public debate between two commissioners about the appropriate method of calculating fines proportionate to the wrongdoing. The authors suggest that Brazil can improve the level of effectiveness of the antitrust policy beyond raising fines. It would be important to incorporate in the antitrust law the specific sanction of a director disqualification order, to create double damages, establish the offense’s duration as a statutory basis for the fine calculation, and create exemptions for leniency beneficiaries to double damages. They also recommend establishing the economic group’s gross turnover as the statutory basis for the fine calculation (instead of the imprecise turnover in the relevant market). Finally, they advocate raising to four to eight years (currently two to five years) the criminal imprisonment penalty for collusion and conspiracy, and including in the criminal law the revocation of the corporate license for trade as an ancillary penalty to be applied by the criminal courts.

Sweden joined the European Economic Area in January 1994, and became a member of the European Union the following year. With the advent of EU membership, it introduced a major shift in the direction of its competition law and policy. A wave of product market liberalisation was supplemented by a new Competition Act and a new Competition Authority, superseding a model that had been applied for almost forty years. Where enforcement action earlier had relied mainly on information, influence and negotiation, the new competition regime was based on clear rules prohibiting certain conduct, and vigorous intervention against any infringements of the prohibitions.