Competition law sanctions and the relations between administrative and criminal law: the criminal lawyer’s view
Our topic today – the relations between anti-trust law and criminal law – raises a whole raft of questions regarding both dogma and application.
Bringing proceedings is in fact the role of the criminal law; the role of antitrust law; the assessment as to the possibility – opportunity of employing the sharp edged weapon of punishment for breaches of competition rules.
From the criminal lawyer’s point of view all this entails a broad analysis which must start with consideration of the provision.
Consideration must be given first and foremost to those fact situations set out in the Italian Criminal Code which, in an incoherent and often anachronistic context, expressly provides, in the list of protected interests, for matters hindering the protection of competition.
I refer to the offences set out in the chapter on crimes against industry and commerce and which, put simply, range from interference with competitive bid processes, unlawful competition through violence or threats to speculative practices in commodities.
They are offences which by their very nature, as I was saying, often bear the signs of the times and which, apart from a few cases, have been applied scarcely.
In any case, they are rules which apply to specific phenomena, even though the code does not contain a provision on “unfair competition” in general; the protection of this area still lies with the civil law.
A second level of relevance of competition from a criminal law perspective is linked to the gradual widening of the spectrum of protection of offences traditionally intended to monitor “traditional” assets.
It is certainly the most significant element from the point of view of criminal law policy decisions because it highlights the gradual widening of the values which are deemed to require the protection of the criminal law.
The reference is, in particular, to corruption – “domestic” and, even more so, international – whose axis over time has shifted from protection of the customary areas of the efficient conduct and impartiality of the public administration to those of free competition between undertakings. It is a clearly marked route in the supranational measures designed to combat corruption and which was undoubtedly boosted by the introduction of the vicarious liability of bodies under Law no. 231 of 2001 which first and foremost had regard to the crimes in question.
As regards corruption this is a line of development which, on close scrutiny, distinguishes public corruption too but which demonstrates, even more markedly, its characteristics in the case of private corruption.
Further, it is not a coincidence that in the Conventions designed to fight corruption, private corruption takes on a configuration such as to direct it clearly towards the protection of competition and that a similar such approach clearly emerges from the Council Framework Decision 2003/568/JHA which makes express reference, as an element delimiting the operation of the crime, to the distortion of competition in the acquisition of assets or services.
The route taken by the German legal system is also emblematic. In fact private corruption appears in the competition law in 1909 and much later it was included in the current article 299 of the German Criminal Code.
The crime of corruption between private individuals under the new article 2635 of the Criminal Code is also consistent with this approach. The provision takes into account not only the assets of the company but also the damage to competition as a criminal offence, in respect of which action may also be brought ex officio. The emergence of interests of a clearly public nature is also obvious in view, amongst other things, of a different regime for the bringing of proceedings. A criminal complaint is brought when purely financial interests are at stake.
The existing legal rules are thus in the process of being supplemented with a view to strengthening competition by way of the introduction of the vicarious liability of bodies for the conduct of those persons who give or promise money or some other gain.
The final level of relevance, that of overlap between criminal law and the protection of competition, which I would like to discuss, is the one most strictly pertinent, as I was saying, to competition law.
This, from a certain point of view, seems ground that is of less interest, or at least less direct interest, to the criminal lawyer given that, as is known, the decision of the legislature, differently from other systems, was in favour of protection outside the realm of criminal law.
The various provisions of the law of 1990 no. 287 rely entirely on administrative fines as preferred instrument of deterrence to phenomena which distort the market – agreements restricting competition, abuse of dominant position and concentrations – or of defence of powers of the regulatory authorities, along with the use of disqualification sanctions.
Room for the operation of the criminal law is however ensured by the provision on obstructing the exercise of the functions of the regulatory authority (article 2638 of the Civil Code) which, amidst the general “mildness” of corporate criminal law over the last few years, has retained its importance in terms of sanctions and scope of application.