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Competition law sanctions and the relations between administrative and criminal law: the criminal lawyer’s view

di - 28 Maggio 2014
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This provision is also applicable to independent authorities such as the Competition Authority and, even though it is true that the first paragraph has a circumscribed scope of application, relating exclusively to the communications concerning the financial position of those subject to supervision – a possibility that is not of immediate relevance to us –; it is equally true that the second paragraph, at least on a wider interpretation of the provision, lends itself to sanctions more generally on the obstruction of the regulatory authority.

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But does the picture I have just painted mean that the criminal lawyers can forego any interest in the question?
Can we really take the view that there is no affinity in terms of sanctions philosophy between criminal law and competition law?
We know very well that this would be a hasty conclusion and an unsatisfactory point of view.
This is demonstrated, I believe, even by the attention which in the last few years criminal lawyers – I must say somewhat tardily compared to the thought given to the matter in other countries – have started to show to competition law matters, having been stimulated by the question of sanctions.
And this could not be the case in view of the increasingly vast amount of attention – with at times “orthopedics” roles – paid by administrative law to the dynamics of the “market”.
The experience of other jurisdictions, for example Germany, in addition to our own (it suffices to mention the fundamental law no. 689 of 1981 regarding the decriminalisation of administrative wrongdoing and the recent tendencies in respect of market abuse), demonstrates that the administrative penalty is increasingly the main instrument for fighting economic crime rate.
Therefore a system of sanctions has been created which is different from traditional criminal law but clearly entails punishment.
This is also clearly evidenced by the sub-system created by the law of 1981 and then, in our own day, by Law no. 231 of 2001, which borrows from and is strongly underpinned by principles and rules inspired by criminal law.
The recent rulings of the European Court of Human Rights – the well-known Menarini is significant in this context – also invoke, regardless of the specific outcome of the claim, the need to give an interpretation to ‘criminal law matters’ which is becoming increasingly detached from formal labels to focus on the character of the penalty, on its severity and on the purposes of the repression and general prevention.
Does this mean rethinking how the law applies and rethinking the role of criminal law?
I do not believe that the solution is recourse to the criminal law outside the areas it already covers.
The challenge is, I believe, the opposite, ensuring a system which, although it has the necessary diversity and the appropriate adaptations, offers, on the substantial level and on the level of enquiry, the guarantees which the punitive nature of the sanctions requires.
It is my view that we must overcome the idea that criminal law and its mechanism of sanctions must be applied every time that civil or administrative sanctions are not able to operate efficiently.
In other words, criminal law cannot be required to play a supplementary role in respect of the other forms of sanction, nor can it be required to regulate, gradually, increasingly large areas of business law.
This is not and would not be good for criminal law – which by rarefying the legal assets protected risks becoming “symbolic” – or for the economy, which would see its natural dynamics altered and undergo a slow process of bureaucratisation.

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What I have in mind is no longer criminal law but serious consideration of what can be valid instruments for an effective system of sanctions which, at the same time, are able to create incentives for companies.
I believe that, following ongoing reflection and experience at European level, it is possible and necessary to reason about the utility of compliance programs, above all with a view to acknowledging them in terms of sanctions.
In this sense the national model set out in Law no. 231 of 2001, to which I referred earlier, constitutes – including in respect of other experiences of models of “antitrust compliance” – a useful basis for comparison.
I believe that the essential prerequisites of a best practice regarding competition law should not diverge greatly from what forms the basis of a model preventing the “231 offences”.
No company best practice, no organisational model, whatever the intended scope, can exist without a robust commitment from the outset on the part of the company management involving serious risk mapping and a resulting identification of procedures for minimising the risks of misalignment. The whole mechanism, obviously, must be accompanied by an effective training of the personnel, a strict audit plan and a credible sanctions apparatus.

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But what now amounts to decades of experience in administrative liability of undertakings teaches us that the “preventive” compliance programs is over time sustainable (for the undertakings) and credible (for the legal system in general) only if the approach of the Authority (the judiciary or administrative authority) is not one of “sceptical dismissal”.

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