The Interplay of Criminal and Administrative Law in the Context of Market Regulation: The Case of Serious Competition Infringements

A study of the interface of the ‘criminal’ and the ‘administrative’ in the context of regulatory law gives rise to a number of big or significant questions concerning contemporary approaches to legal control and the constitutional ordering of the core values of contemporary society. Thus, it may be asked:

• What is the pattern of administrative procedures and sanctions which are now available in some legal systems but not others - how should the provenance of the preference for one approach or the other be mapped and understood ?

• Is this pattern explicable as a matter of the legal and enforcement culture and traditions of these systems ?

• What does the exercise of that choice signal regarding a society’s view of certain conduct, its concept of crime and its policy of criminalisation ?

• Are there political and practical forces that shape and determine policy (if policy on the question exists as such) and actual resort to these different types of legal process ?

• What does the possibility of such a choice of legal process reveal about the nature and problems of regulation and regulatory models of legal control in contemporary society ?

These then are the basic questions of provenance, legal culture, crime policy, pragmatic dimension, and regulatory context, which may be used to inform a probing discussion of the subject. The ‘criminal law versus administrative process’ debate is thus an instructive testing ground for reflection on the role and purpose of both criminal law and regulation in present day society, or societies, and this discussion will test these questions around four main themes and issues: definition and vocabulary; underlying legal and political culture; issues of justice and agency; and the regulatory context of competition infringements.