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Criminalizing Business Cartels in Europe - A Comparative Perspective

This article examines the use of arbitration in competition law from Irish perspective, with a focus on the challenges faced by arbitrators operating in a jurisdiction where infringements of the competition rules can carry the weight of the criminal law and potentially lead to custodial sentences.

Arbitration and Competition Law: The Potential Role of Ireland in the Privatisation of Competition Law

Given the immense social, economic and personal damage caused by the covering-up of crimes by Irish institutions, there is a remarkable reluctance in Irish society to provide systematic protection to whistle-blowers and persons willing to come forward to ensure offences are investigated by the competent authorities. Nowhere is this more relevant than in the often murky world of white collar crime. However, some recent may be a sign that the tide is turning. This article seeks to explain recent reforms of the immunity program used to encourage self-reporting of information on certain potential breaches of the Competition Act 2002 (as amended).

The Irish Competition and Consumer Protection Commission Revises its Cartel Immunity Program

Administrative schemes of regulation and benefit-distribution give rise to large numbers of individualized disputes between government agencies and private parties. Every country needs a system of administrative adjudication to resolve such disputes accurately, fairly, and efficiently. Generally, all such systems provide for a front line determination, an initial decision, administrative reconsideration, and judicial review. However, the details of the various systems are bewilderingly diverse. This chapter proposes a methodology for classifying such systems. It identifies four key variables: combined function agencies or separate tribunals, adversarial or inquisitorial procedure, closed or open judicial review, and judicial review by generalized or specialized courts. The chapter identifies five models in common use around the world that involve different combinations of these variables. Finally, the chapter discusses the utility of transplants from the adjudicatory system of one country to another.

A Comparative Approach to Administrative Adjudication

This research paper question to what extent the AI Act allows for algorithmic regulation and decision-making to take shape in competition law. It first summarises the algorithmicising of competition law proceedings. It then discusses algorithmic decision-making under the AI Act. Annex III of the AI Act qualifies as high-risk AI systems intended to be used by law enforcement authorities in the course of detection, investigation and prosecution of criminal offences. As some EU Member States criminalised competition law, this would mean the AI Act might apply to AI systems used in competition proceedings. Competition law is, however, not qualified as criminal in all Member States. This paper therefore questions the opportunity to use the dichotomic relation between hard core and peripheral law developed by both the European Court of Justice and the European Court of Human Rights. This paper argues, however, that such solution is doomed to failure. A contextual interpretation of the Proposal prevents any application of the AI Act to competition law through the back-door. The paper concludes imagining the competition landscape after the AI Act. On countries wherein competition law is criminal, national competition authorities will have to take that Regulation into account when developing AI systems that detect, investigate and prosecute competition infringements. As not all EU Member States have criminalised competition law, this would result in an imbalance between domestic legal orders that goes against the prime ambition of the AI Act, i.e. , harmonisation.

Without Any Prejudice? The Antitrust Implication of the AI Act

The Competition Act 2002, ten years later: lessons from the Irish experience of prosecuting cartels as criminal offences

This article proposes changes to the role of the EU hearing officer and looks, as a starting point, to the US administrative model, in particular the role of the Administrative Law Judge. It is argued that the US model makes better use of its hearing examiners to understand and probe contested points of fact or law. The article sets out a proposal for strengthening the function and responsibilities of the EU hearing officer to also include a review of substantive points of the case. The hearing officer’s substantive findings, in addition to reporting on procedure, would be included in a final public report. These relatively modest changes would provide comfort to the parties that some independent scrutiny of disputed facts had taken place whilst the Commission would retain full discretion as to the ultimate decision. However, importantly, the Commission’s decision-making would be aided by a more robust oral hearing. No fundamental changes to the EU’s administrative model would be required for the implementation of this proposal. For practical reasons it is suggested to trial this proposal first in the Commission’s Article 101 and 102 TFEU investigations.

A larger role for the hearing officer: a modest proposal

Examination of the proliferation of competition law enforcement jurisdictions and a renewed role for the application of negative comity principles.

Terry Calvani

Papers

The Competition Act 2002, ten years later: lessons from the Irish experience of prosecuting cartels as criminal offences

A larger role for the hearing officer: a modest proposal

Is There Too Much Traffic on the Competition Law Enforcement Autostrada: A Role for Negative Comity