Leniency and Criminal Sanctions in Anti-Cartel Enforcement: Happily Married or Uneasy Bedfellows?

The discussion here will consider the relationship between the operation of leniency programmes in the context of competition law or antitrust enforcement and the use of criminal law or other penal sanctions. The purpose will be to explore this significant but as yet imperfectly understood intersection of competition law and criminal law and in particular probe the dynamic of legal development: whether this should be seen as the adoption of a criminal law tool by the competition regime, or as an incursion of criminal law ideology into the latter. The value of the kind of enquiry is that it can inform our perception of what is happening in both the field of competition governance and that of criminalisation policy. Putting the point more bluntly, does the view of the cartelist as criminal (‘well-dressed thief in a suit’ ) originate in the service of leniency, or in a strong normative (political and legal) shift in feelings about cartel behaviour ?