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Securing the Legitimacy of Individual Sanctions in UK Competition Law

Lookup NU author(s): Dr Jonathan Galloway

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This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).


Abstract

Traditional deterrence theory relies on a combination of probability and severity of punishment to impose a perception of sufficiently high costs to deter wrongdoing. Yet when a very high severity of punishment counters a low probability, disproportionate outcomes give rise to societal concerns about procedural fairness and justice, such that the law loses legitimacy. Any loss of legitimacy undermines would-be offenders normative commitment to, and voluntary compliance with, the law. The UK has encountered significant obstacles in efforts to enhance the deterrence of competition law. The Enterprise Act 2002 and the Enterprise and Regulatory Reform Act 2013 introduced individual sanctions, consisting of a criminal cartel offence and director disqualification orders, to deter anti-competitive behaviour. This article argues that poor drafting and prosecutorial failure are responsible for the failure to earn and secure the legitimacy of the cartel offence. Yet the greatest regulatory failure is not making fuller use of the disqualification powers, which have greater legitimacy. By following the approach suggested in this article the deterrent value and legitimacy of UK competition law would increase, and we would be closer to achieving the goals of the individual sanctions when they were introduced over 13 years ago.


Publication metadata

Author(s): Galloway J

Publication type: Article

Publication status: Published

Journal: World Competition

Year: 2017

Volume: 40

Issue: 1

Pages: 121-158

Print publication date: 01/02/2017

Acceptance date: 02/12/2016

Date deposited: 06/12/2016

ISSN (print): 1011-4548

ISSN (electronic): 1875-8436

Publisher: Kluwer Law International

URL: http://www.kluwerlawonline.com/toc.php?pubcode=WOCO


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